Administrative Violence,
Critical Trans Politics, and the
Limits of Law

South End Press
Brooklyn, NY

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Not a Parade!” 205 Acknowledgements 229 Index 233 About the Author 249 .Contents Preface 7 Introduction: Rights. and Critical Trans Politics 19 1 Trans Law and Politics on a Neoliberal Landscape 49 2 What’s Wrong with Rights? 79 3 Rethinking Transphobia and Power— Beyond a Rights Framework 101 4 Administrating Gender 137 5 Law Reform and Movement Building 171 Conclusion: “This Is a Protest. Movements.


a 25-year-old transman. To his family he remained female-identified. mental health centers. and had spread the word to other service providers like drug treatment centers. was desperate for help. with whom he was very close. legal aid offices. Jim is a trans person with an intersex condition. My first call came from the men’s jail in Brooklyn. but in the world he identified as male. I opened the doors of the Sylvia Rivera Law Project (SRLP). Jim was arrested for drug possession.Preface In 2002. When Jim was nineteen. he was facing a se- vere threat of rape and already experiencing harassment. he was involved in a robbery for which he received a sentence of five years probation. but he knew it was the only way to maintain a relationship with his fam- ily. changing clothes every night when he returned home and trying to avoid contact between his family and everyone else he knew.1 Jim. needle exchanges. The stress of living a “double life” was immense. He was sentenced to eighteen months of residential 7 .2 He was raised as a girl. but during adolescence began to identify as male. I had raised enough grant money to rent a desk and a phone at a larger poverty law organization. and community organizations that I would be providing free legal help to trans people. I never would have guessed the number of people who would call the organization for help or the gravity and complexity of the problems they face. During the second year of that probation period.

Jim discussed his inter- sex condition with his counselor. and would not be safe places for Jim to be known as a trans person with an intersex condition. Even when we had convinced the judge of this. Some facilities said they would not accept Jim because they were not prepared to work with someone like him. other inmates and staff learned of his status. under enormous stress.8 NORMAL LIFE drug treatment and sent to a male residential facility. wanting to deal with his outstanding criminal charges so that he could safely apply to college and get on with his life. The jail administration’s refusal to continue Jim’s testosterone treatments had caused him to menstruate. Out of fear and self-protection. Eventually. staff at all levels would ask me questions like “Does he pee sitting or standing?” and “Does he have a penis?” indicating to me that Jim would be treated as a novelty and his gender and body characteristics would be a source of gossip. when Jim was strip searched while menstruating. again facing a threat of rape. we faced the fact that most programs were gender segregated. Jim faced a threat of rape and the staff of the facility refused to help or protect him. Jim and I worked together to convince the judge assigned to his case that Jim could only safely access drug treatment services in an outpatient setting because of the dangers he faced in resi- dential settings. Jim was now in a Brooklyn men’s jail. in fact. he ran away from the facility. When I contacted facilities to find a place for Jim. The few lesbian and gay drug treatment programs I identified seemed inappropriate because Jim did not identify as gay and was. Jim. engaged in treatment where . His confidentiality was broken and soon the entire staff and residential population were aware of Jim’s intersex condition and trans history. In what was a purportedly therapeutic environment. I met Jim after he had turned himself in. quite unfamiliar with gay and lesbian people and somewhat uncomfortable in queer spaces. Those that did not outright refuse his application indicated their inadequacy to provide him with appropriate treatment. the judge agreed to let Jim try outpatient treatment on a “zero tolerance” policy where a single relapse would result in jail time.

Bianca came to me for help with a range of issues. Another client I met around the same time was Bianca. decided to come out together. Preface 9 he was always afraid he might be outed and where his participa- tion in the daily hours of group therapy required hiding his iden- tity. Now he would be sentenced to prison. the judge’s response was. Bianca was attending public high school in the Bronx. they were told to leave and not come back. They were given no referrals to other schools. a close friend. When I met Bianca. I met Bianca three years later. Eventually. When their parents called the school to follow up and find out what to do next. Jim’s gender and body status and his inability to successfully navigate the gender requirements of the extremely violent systems in which he was entangled—because of his involvement in criminalized activity stemming from his poverty—was considered part of his criminality and a blamewor- thy status. They arrived at school one day dressed to reflect their female gender identities. she was homeless. I discovered that the statute of limitations had expired. After strug- gling with an internal understanding of herself as a woman for several years. She and another transgender student. Jim relapsed. When I went before the judge to request that Jim be placed in a women’s prison because of his well-founded fear of sexual assault in men’s facilities. their calls were not returned. sentencing him to the maximum number of years possible for violating parole and requiring him to serve the time in a men’s prison. and try- ing to escape from an abusive relationship.” Once again. The judge “threw the book” at Jim. She no longer had a viable legal claim. Bianca eventually mustered the strength to come out to her peers and teachers. a nineteen-year-old transwoman. First. and no official suspension or expulsion hearings or documents. The two students were stopped at the front office and not allowed to enter school. unemployed. She had been unable to obtain legal representation. and when I began in- vestigating the possibility of a lawsuit. She was afraid to go to . “He can’t have it both ways. In 1999. she wanted to sue her high school. Not surprisingly.

Bianca felt her only option for finding income sufficient to pay for the hormones was to engage in criminalized sex work. and other communicable diseases. . she was brutally harassed outside. Additionally. and when she finally entered and attempted to use the women’s rest room. she was at greater risk of HIV. When Bianca applied for welfare. arrest. we ran up against the fact that all of the home- less shelters insisted on placing her according to birth-assigned gender. because Bianca was accessing intravenously injected hormones through street economies. Women’s shelters for domestic violence survivors refused to recognize her as a woman and thus were unwilling to take her in. This put her in further danger of police violence. Bianca’s total lack of income also meant that she had no access to the hormone treatments she used to maintain a femi- nine appearance.10 NORMAL LIFE the police both because of fear of retaliation from her boyfriend and because she rightly feared the police would not only refuse help. At this point. All of her identification (ID) indicated a male name and gender. which was emotionally necessary and kept her safe from some of the harassment and violence she faced when she was more easily identifiable as a transwoman on the street. but also humiliate. she was outed and humiliated by staff. she was forced to procure her hormone treatments in un- derground economies because it would have been cost prohibitive to obtain her medication from a doctor since Medicaid—had she even been given those benefits—would not cover the costs. hepatitis. and she was afraid of the abuse she could face in such a situa- tion. harass. and other vio- lence. or hurt her because she was trans. Bianca would be the only woman in an all men’s facility. she felt too unsafe to return and her benefits were terminated. When she tried to access the job center. she was given an assignment to attend a job center as part of participation in a workfare pro- gram. As we searched for places for Bianca to live. Ultimately. there would be no way for her to interact with the police without being identified as a trans person.

Each client’s story demonstrated the inter- weaving of these different types of obstacles. education. sexual harassment and assault. evictions. to name but a few. employment. I found there was an enormous number of people facing a series of interlocking problems related to being basically unfathomable to the administrative systems that govern the distribution of life chances: housing. beatings and rapes. The impact of each of these situations was exacerbated by the ways gender is an organizing principle of both the economy and the seemingly banal administrative systems that govern everyone’s daily life. police brutality. and public facilities. Non-immigrant clients also faced severe documentation problems and specific catch–22s related to identification and . Most had no hope of finding legal employment because of the bias and violences they faced. My clients did not fit into gendered administrative systems. where they were inevitably locked into gender-segregated facilities that placed them according to birth gender and exposed them to further violence. but have an especially strong presence in the lives of poor people. I heard consistent reports of police profiling. and therefore turned to a combination of public benefits and criminalized work—often in the sex trade—in order to survive. As the calls continued to pour into SRLP. and death. and they paid the price in exclusion. denials and rejections from caseworkers in social service and welfare agencies. just one prostitution charge could destroy their eligibility. vio- lence. fir- ings from jobs. health care. This meant constant exposure to the criminal punishment system. On the bias side. My clients faced both the conscious bias of transphobia that produces targeted violence as well as numerous administrative catch–22s that render basic life necessities inaccessible. and family rejection. rejections from legal services. Preface 11 Jim’s and Bianca’s stories. For immi- grants seeking an adjustment of status that would enable them to live legally in the United States. identity documentation and records. and false arrest. Even admitting that they had ever engaged in sex work to an immigration lawyer would disqualify them from receiving assistance with the adjustment of status process. were not unusual. it turned out.

education. trying to travel. this care is deemed essential for changing gender on birth certificates. US citizenship. attempting to cash checks. These barriers make it exceedingly difficult for trans people to gain the economic re- sources necessary to obtain gender-confirming health care if this is something they want or need.12 NORMAL LIFE health care. the majority of private health insurers and state Medicaid programs have rules excluding this care from coverage. often cannot afford health care. and departments issuing birth certificates to change gender on the ID. or entering age-restricted venues: the person’s trans identity is exposed every time ID is shown. though the state simultane- ously has a Medicaid program that explicitly excludes this care from coverage. especially surgery. have their parental rights terminated by courts. experience incidents of physical attack. For most trans people. are arrested for using bathrooms or barred .3 However. Not having appropriate identifica- tion creates difficulties and dangers when dealing with employers or the police and other state agents. and English-language skills experience many of these hurdles. The stories I heard from my first clients and continued to hear from the trans people I met through my work at SRLP portrayed a set of barriers—both from bias and from the web of inconsis- tent administrative rules governing gender—that produce signifi- cant vulnerability. white privilege. which means that those who cannot pay for this care out-of- pocket probably cannot get it and thus cannot change the gen- der on their IDs. these rules make getting correct ID nearly impossible. These administrative policies and practices severely constrain access to health care and employment for most trans people. the Social Security Administration (SSA). The impact of these conditions ranges across subpopulations of trans people: even those with class privilege. In New York. Those with such privileges have many of the same ID problems. physical and mental ability perceived as average or above. Proof of having undergone gender-confirming health care. is required by the majority of ID-issuing agencies in the United States including Departments of Motor Vehicles (DMVs).

indigenous people. work that also produces new terminology. foster youth. Preface 13 from gender appropriate bathrooms at work and/or school. whiteness. job training centers—that employ rigid gender binaries. in part because more aspects of their lives are directly controlled by legal and administrative systems of domination—prisons. welfare programs. drug treatment centers. However. This book looks at the conditions that are shortening trans people’s lives and investigates what role law plays in produc- ing those conditions and what role law could or should play in changing them. the public discourse about trans identities and trans rights has changed significantly. Most experience a downward mobility in terms of wealth/income because of their trans identities.. per- ceived ablebodiedness. or access to an advocate or a health care opportunity more costly. These intersecting vectors of control make obtaining resources especially difficult. experience more beatings and rapes. are discriminated against by in- surance companies. immigration status) often of- fer some individuals degrees of buffering from the violences faced by people of color. employment. and homeless people. foster care. family support. are imprisoned at extremely high rates.g. What . Emerging trans political formations have begun institutionalizing by creating new nonprofit organizations and professional associations focused specifically on trans issues. access to certain privileges that serve in determining the distribution of life chances (e. Concern about the exclusion of trans people from gay and lesbian political strategies has heightened. are discriminated against in hiring. The most marginalized trans people experience more extreme vulnerability. prisoners. The most marginalized trans populations have the least protection from violence. immigrants. and render every loss of a job. In the last two decades. and are more likely to be disappeared and killed. and lose family support. homeless shelters. and advocacy tools concerning gender identity and expression. These develop- ments are raising important questions about trans politics. restrict access to zones of retreat or safety. Media coverage of trans issues has increased. knowledge. people with disabilities.

and Angela Harris4 describe the operation of key political develop- ments. Roderick Ferguson. and critical disability studies to reveal the mistakes and limitations of white lesbian and gay rights strategies. Critical political and intellectual tradi- tions have generated a vivid picture of the limitations of reform strategies focused on legal equality for movements seeking trans- formative political change. immigration politics. this book draws from the insights of Critical Race Theory. these traditions provide ways of understanding the operations of power and control that allow a more accurate identification of the conditions trans people are facing. and have illustrated that legal declarations of “equality” are often tools for main- taining stratifying social and economic arrangements. women of color feminism. Angela Davis. the dismantling of welfare programs. feminism. such as the decreasing bargaining power of workers. and disability politics? In proposing what role law reform should have in trans resis- tance. anti-imperialism. the growth of the prison indus- trial complex (PIC) and immigration enforcement. Chandan Reddy. These traditions have highlighted the ineffectiveness of the discrimination principle as a method of identifying and addressing oppression. and also identify the complexities involved in practicing resistance politics in an age of cooptation . anti-capitalism. and the development of more effective strategies for transformation than the liberal legal reform framework permits. Scholars and activists in these tradi- tions such as Ruth Gilmore. and the rise of the nonprofit formation. how does trans politics interface with anti-racism. Lisa Duggan.14 NORMAL LIFE is the relationship of trans political strategy to the strategies of the lesbian and gay rights work that has garnered so much atten- tion in the last three decades? What role should law reform play in trans political strategy? How will forming nonprofits focused on trans issues impact trans people’s lives and trans resistance politics? Who should lead and what forms of leadership should trans politics utilize? What relationship does trans politics have to other political movements and issues? Specifically. queer theory. Further. Grace Hong. Andrea Smith.

and il- lustrates the ways trans resistance fits into the larger frameworks being developed in these conversations. The compromises made in lesbian and gay rights efforts to win formal legal equality gains have come with enor- mous costs: opportunities for coalition have been missed. large sectors of people affected by homophobia have been alienated. and militarization have caused it to be incorpo- rated into the neoliberal agenda in ways that not only ignore. one that more accurately conceptualizes the conditions trans people face and more directly strategizes change that impacts the well-being of trans people. and the actual impact of the “victories” has been so limited as to neutralize their effect on the populations most vulnerable to the worst harms of homophobia. the shifting discourse and strategy of lesbian and gay rights work toward privatization. those most vulnerable to regimes of homophobia and state violence. Such an approach includes law reform work but does not center it. Preface 15 and incorporation. . and instead approaches law reform work with the caution urged by the critical traditions to which trans politics is indebted and of which it is a part. applies the analysis these tradi- tions have developed to the struggles facing trans people. Further. settler colonialism. These concerns cau- tion trans scholars and activists to learn from the limitations of that approach. inclusion. I suggest that a more transformative approach exists for trans politics. To that end. but also directly disserve and further endanger and marginalize. Instead. white supremacy. the chapters that follow raise concerns that have emerged with the institutionalization of the lesbian and gay rights agenda into a law reform-centered strategy. This book examines these questions from a critical trans political perspective. and incorporation similar to what has been sought by lesbian and gay rights advocates. This book demands a reconsideration of the assumption that trans politics is the forgotten relative of the lesbian and gay rights strategy. and that its focus should be to seek recognition. It makes demands that exceed what can be won in a legal system that was formed by and exists to perpetuate capitalism. criminalization.

see www. 217–241. NOTES 1.” Hastings Law Journal 59 (2008) Politics and Law. non-hierarchical.16 NORMAL LIFE and heteropatriarchy. Advocacy organizations such as the Sylvia Rivera Law Project (www. my article “Documenting Gender. they are often targets for medical intervention in childhood to make their bodies conform to gender This book aims to describe some of what that critical trans politics requires and suggest what models we al- ready have and might expand for practicing critical trans politics. “Compliance Is Gendered: Transgender Survival and Social Welfare. (Minneapolis: University of Minnesota Press. and the National Center for Transgender Equality (www.isna. These two case studies are adapted from my article. It is sustained by social movement infrastructure that is democratic. immigration enforce- ment. and centered in healing. or wealth disparity. nclrights. It is rooted in a shared imagination of a world without imprisonment. Because of these understandings. sexual violence. colonialism. I have not included a complete list of current policies in this vol- ume because they change frequently. For more information. but there is no evidence that people with intersex conditions are more or less likely than others to have a trans identity. 3. and Richard Juang. “Intersex” is a term used to describe people who have physical conditions that medical professionals assert make them difficult to clas- sify under current medical understandings of what constitutes a “male” or “female” body. eds. 2006). the National Gay and Lesbian Task Force (www. . However. Jim is a person with an intersex condition who is also transgender. Extensive advocacy has been undertaken to stop these in- terventions and allow people with intersex conditions to choose whether or not they desire medical intervention that would bring their bodies into greater compliance with gender norms. Paisley Currah. includes descriptions of state and local policies and their requirements as they existed at the time of publication.thetaskforce.” in Transgender Rights: History. the National Center for Lesbian Rights ( Shannon Minter.srlp.

2003). Surplus. 2003). NC: Duke University Press. Grace Kyungwon Hong. Aberrations in Black: Toward a Queer of Color Critique (Minneapolis: University of Minnesota Press. Crisis. Lisa Duggan. e. Sexuality and the U. 2006). . The Ruptures of American Capital: Women of Color Feminism and the Culture of Immigrant Labor (Minneapolis: University of Minnesota Press. State (Durham. Angela P. Chandan Reddy. Preface 17 nctequality. Conquest: Sexual Violence and American Indian Genocide (Cambridge. See. and Andrea Smith. 4. The Twilight of Equality? Neoliberalism. Freedom with Violence: Race. Harris. Roderick Ferguson. 2005)..S. Are Prisons Obsolete? (New York: Seven Stories Press. MA: South End Press. and the Attack on Democracy (Boston: Beacon Press: 2004).” William and Mary Bill of Rights Journal 14 (2006): 1539–1582.g. Angela Y. Davis. Golden Gulag: Prisons. Ruth Wilson Gilmore. 2011).org) can be contacted to obtain updates about changes to these policies. and Opposition in Globalizing California (Berkeley and Los Angeles: University of California Press. “From Stonewall to the Suburbs? Toward a Political Economy of Sexuality. 2007). Cultural Politics.


I hope to show how critical trans politics practices resistance. this critical approach to resistance refuses to take for granted national stories about social change that actually operate to maintain conditions of suffer- ing and disparity. I aim to address specific sites of intersection where trans activists and organizers can and are find- ing common cause with some of the most important political agendas of our time: prison abolition. wealth redistribution. civil society security. one that I argue is reca- pitulating the limits of leftist.1 It questions its own effectiveness. And it is about practice 19 . it aims to chart the current trajectory of trans politics. Following the traditions of women of color feminism. and organizing against immigration enforcement. Second. lesbian and gay. and social equality. Movements. seeking instead to transform current logics of state. In developing this two-fold account of con- temporary trans politics I aim to reveal the indispensability of trans organizing and analysis for both leftist thinking and left social movements. First. engaging in constant reflection and self-evaluation. and Critical Trans Politics This book has two primary goals. it seeks to elaborate on the possibilities of what I understand as a critical trans politics—that is.Introduction Rights. Additionally. Further. and anti- racist politics that have centered legal recognition and equality claims. a trans politics that demands more than legal recognition and inclusion. feminist.

and that if particular groups experience harm..” To practice this politics we have to tackle some big questions about what law is. that refuses to take for granted stories about what counts as change that actually maintain certain structures and categories. The patriotic narrative delivered at school tells us a few key lies about US law and politics: that the United States is a democracy in which law and policy derive from what a majority of people think is best. they can appeal to the law for protection. that the United States used to be racist and sexist but is now fair and neutral thanks to changes in the law. We need a critical trans politics that perpetually questions its own effectiveness. Social movements have challenged this narrative.g. and disability. and what role changing laws can and cannot have in changing the arrangements that cause such harm to trans people.2 Various social movements have had to contend with why legal change in the form of rights has not brought the deep transfor- mation they were seeking.20 NORMAL LIFE and process rather than a point of arrival. how legal systems are part of the distribution of life chances. Social movements engaged in resistance have given us a very different portrayal of the United States than what is taught in most elementary school classrooms and textbooks. Before trans people sign on to what looks good about being recognized by law in ways that seem desireable (e.3 They have shown that the United States has always had laws that arrange people through . resisting hierarchies of truth and reality and instead naming and refusing state violence. race. why disparities in life chances have increased during a period when we have seen the elimination of formal segregation and the advent of policies prohibiting discrim- ination on the basis of sex. being added to anti-discrimination and hate crime laws). identifying the United States as a settler colony and a racial project. founded and built through genocide and enslavement. We need a critical trans politics that is about practice and process rather than arrival at a singular point of “liberation. what power is. we have to strongly consider why those laws have failed to provide the change that many have hoped for.

It has cautioned us against an overly narrow. and safety but are instead spon- sors and sites of violence. knowledge.” like “military in- dustrial complex” or “prison industrial complex. women. and recognize possibilities for resistance as similarly dispersed. For example. That story casts juried trials as fair and impartial ways of determining who deserves to be punished. simplified vision of power that sees power as a possession primar- ily held by government officials. protection. Introduction 21 categories of indigeneity. people with disabilities.4 This perspective eliminates the false notion that we could win the change people need simply by using the electoral process to vote in certain representatives or pass certain laws. These counter narratives have challenged the notion that violence is a result of private individuals with bad ideas and that the state is where we should look for protection from such violence. It helps us investigate how the norms that pro- duce conditions of disparity and violence emerge from multiple. and technologies of power are distributed in myriad ways rather than only from a single per- son or institution.” which has been essential for exposing the central harms faced by native people. people of color. race. When movement organizers. and intellectuals use various terms that end in “industrial complex.” they are point- ing to this kind of multivector analysis of law. It contests the dominant story that tells us that bad individuals need to be exiled to prison to keep others safe. They have exposed that state programs and law enforcement are not the arbiters of justice. Conversely. and norms. Instead. this work has developed the understanding that power is decentralized and that certain practices. norms. resis- tant political theorists and social movements have helped us un- derstand the concept of “state violence. using the term “prison industrial complex” suggests that . and poverty. and immigrants. ability. interwoven locations. gender. Additionally. activists. violence. the term prison industrial complex (PIC) reframes the issue of criminal punishment. and national ori- gin to produce populations with different levels of vulnerability to economic exploitation. power. ways of knowing.

5 This kind of analysis helps us understand that there is not one source of power. agriculture policy. but instead about the . contradictory sites where regimes of knowledge and practice circulate and take hold. Such an analysis also suggests that there is much work to be done to dismantle the trend of racialized-gendered mass impris- onment—in many locations. Living in a society defined by criminaliza- tion and imprisonment shapes how we design and build schools and discipline kids who are perceived to misbehave. It relates to how we frame issues in the news and in entertainment media. Rather. social service. or police precincts. how vari- ous financial interests are implicated in motivating law enforce- ment expansion. not just in legislatures.22 NORMAL LIFE multiple. media. how racist ideas are mobi- lized to justify an expansion of imprisonment systems. health care. and even our own self-conceptions helps us both account for the enormity of the significance of imprisonment and understand that addressing it is not simply a matter of appealing to one central source of power or decision-making. Understanding how the forces producing impris- onment and criminalization operate at multiple sites and registers ranging from laws and policies to education. It relates to the availability of finance capital and so much more. and health care systems. courts.” how certain behaviors and actions come to be classified as crimes. no one person at the top dominating every- one below. connected processes and forces determine how certain populations get labeled as “criminal. This way of understanding the dispersion of power helps us realize that power is not simply about certain individuals being targeted for death or exclusion by a ruler. It relates to how we run homeless services. and how criminalization and imprisonment filter through every aspect of how we live and understand our- selves and the world. Power is not a matter of one dominant individual or institution. elections. but instead manifests in interconnected. there are regimes of practices and knowledge that coalesce in conditions and arrangements that affect everyone and that make certain populations highly vulnerable to imprison- ment.

asking different ques- tions. recording. the ways of seeing and rep- resenting embedded in practices of government. knowledge and ex- pertise that compose a field to be governed and invest it with purposes and objectives. Policies and practices rooted in eugenics have attempted (and continue to attempt) to eliminate the existence of people who fall outside those norms. compiling. It can also be seen in the work that has been done for dis- ability justice. such that they constitute a kind of taken-for-granted point of reference for any form of problematization. technologies and agencies. Critical disability studies and the disability rights and disability justice movements have shown us how regimes of knowledge and practices in every area of life establish norms of “healthy” bodies and minds. and consign those who are perceived to fall outside those norms to abandonment and imprisonment. the technologies of notation. Introduction 23 creation of norms that distribute vulnerability and security. To examine regimes of government is to conduct analysis in the plural: there is already a plurality of regimes of practices in a given territory. and the different agencies with various capacities that the practices of government require. programmes.6 This kind of analysis can be seen in the work of those us- ing “industrial complex” terms to describe and resist the forces of militarization and criminal punishment that pervade US so- ciety. When we think about power this way. each composed from a multiplicity of in principle unlimited and heterogeneous elements bound together by a variety of relations and capable of polymorphous connec- tions with one another. Mitchell Dean describes how this kind of analysis attends to the routines of bureaucracy. the theories. presenting and transporting of in- formation. elicit. Native scholars and activists have shown . Regimes of practices can be identi- fied whenever there exists a relatively stable field of correla- tion of visibilities. form and reform. we undertake a different kind of examination of conditions that concern us. mentalities.

Even though norms are incorporated into various spaces and institutions inconsistently and applied arbitrarily. Many social movements have produced analyses of how various groups are harmed by the promotion of a national iden- tity centered in norms about race. gender. land and housing distribution programs) and the targeting of these same populations for imprisonment and violence (including criminal punishment. These constructs often operate in the background and are presumed as “neutral” features of various administra- tive systems. and poverty that social movements have resisted—the idea that the national population (constructed as those who meet racial. Social Security benefits. health. we can see how the circulation of norms creates an idea that undergirds conditions of violence. and how every instance of the imposition of these norms have been used in the service of the genocide of indigenous people. ability. national origin. they still achieve the overall purpose of producing security for some populations and vulnerability for others. The existence and operation of such administrative norms is therefore less visible than those moments when people are fired or killed or excluded explicitly because of their race or body type or gender. and reproduction. bodies. and medical experimentation). immigration enforcement. gender. exploitation. and other norms) must be protected from those “others” (those out- side of such norms) who are portrayed again and again in new iterations at various historical moments as “threats” or “drains. such as the dismantling of welfare programs and .” This operation of norms is central to producing the idea of the national body as ever-threatened and to justifying the exclusion of certain populations from programs that distribute wealth and life chances (white schools. yet they sometimes produce more signifi- cant harm because they structure the entire context of life. racist drug laws. I am going to return again and again in the chapters that follow to key examples.24 NORMAL LIFE how white European cultural norms determine everything from what property is to what gender and family structure should look like. steril- ization. sexual. In these locations and many others.

Throughout this book. oppressor/oppressed. racism does not only occur in moments when individual people of color are excluded from employment op- portunities by individual white people. Racism shapes how individuals . transphobia. that one set of people “have power” and another set are denied it. often in the form of programs that attest to be race. the things we believe about ourselves and our rela- tionships with other people and with institutions. and build participatory and accountable resistance formations. The term “subjection” captures how the systems of meaning and control that concern us permeate our lives. As I will argue in more detail in Chapter 3. I use the term “subjection” to talk about the workings of systems of meaning and control such as racism. Introduction 25 the expansion of criminal and immigration enforcement. if we want to alleviate harm. Thinking about power only as top/down. and the ways we imagine change and transformation.and gender-neutral and merely administrative. ableism. sexism. If we seek to imagine transfor- mation. Racism also occurs when media perpetuate stereotypes about people of color. and xeno- phobia. For example. that are central to contemporary politics and help illustrate how life chances are distributed through racialized-gendered systems of meaning and control. our ways of knowing about the world. homophobia. and our ways of imagining transformation. our strategies need to be careful not to oversimplify how power operates. I use “subjection” rather than “oppression” because “oppression” brings to mind the notion that one set of people are dominating another set of people. I use “subjection” because it indicates that power rela- tions impact how we know ourselves as subjects through these systems of meaning and control—the ways we understand our own bodies. redistribute wealth and life chances. the operations of power are more complicated than that. Racism de- termines policy discussions about everything from health care to agriculture to national security. dominator/dominated can cause us to miss opportunities for intervention and to pick targets for change that are not the most strategic.

Racism shapes how things like beauty. ability. It is about the strategies emerging from a popula- tion often identified by its failure to meet norms associated with . and under what conditions. it is also about resistance. The invention of racial categories—the “racializa- tion” of peoples—was essential to establishing the interests in land and labor that founded the United States. “Subjection” is a term that tries to capture that complexity and the significance of how thoroughly our ways of living. for how long.7 The continued maintenance and reinvention of racial categories and new sites of racialization have been essential to the distribution of wealth and life chances. what public benefits programs will be cut. Similarly. and enterprise are culturally defined.26 NORMAL LIFE and communities see ourselves and understand our relationships to one another. This way of thinking about power and control can also help us spot traps of co-optation and incorpora- tion that our resistance projects face. and how multifaceted the relations of these categories are to one another. Racism determines who will be arrested. While this book is about how power works. the shifting understandings of gen- der. thinking. This way of thinking about how systems of meaning and control operate helps us acknowledge how important constant self-reflection is and how essential participatory movements that center the leadership of people facing the most direct harms from systems of subjection are. This book looks at how legal reform itself sometimes operates as one such trap. Racism determines what schools will be well funded and which communities will be sited for toxic indus- try. They also frame all discussions of what resisting harmful arrangements can look like. Racism does not just flow from the top down but rather permeates the entire field of action. reason. and what behaviors will be considered criminal. and migration—and the meanings attached to dif- ferent populations through those shifts—determine who lives. and knowing ourselves and the world are imbued with the mean- ings and distributions wrought through these various categories of identity. intelligence.

been declared newly neutral or fair or protective. land theft. It also considers how norms like these become part of the resistance itself. This text proposes a politics rooted in questioning how those norms come to be and how they impact—and extinguish— the lives of trans people. sexism. and cannot. since US law has been structured from its incep- tion to create a racialized-gendered distribution of life chances that perpetuates violence. if we understand that power does not operate through the domination of a central figure or institution over the masses but is instead diverse. how do we engage with legal reform? . The critical analysis built by many resistant social movements illuminates the limitations of a theory of law reform that aims to punish the “few bad apples” supposedly responsible for rac- ism. To do so. and exploitation. genocide. we will not resolve those issues solely by appealing to law. and decentralized. and then once more failed to trans- form the conditions of disparity and violence that people were resisting. ableism. If we refuse to believe what the law says about itself. Given the insights gleaned from social movements that have wrangled with violent legal regimes and with law reform strategies. this book examines what relationship trans politics has to “individual rights”—the framework most frequently articulated by the demands of many contemporary social movements—and investigates other ways to conceive of law reform tactics in trans resistance that forgo the limitations of demands for individual rights. multifaceted. or transphobia. and if we realize that the transformation needed to address the kinds of conditions I described in the Preface will not. this book aims to think through how a critical trans politics might conceptualize the role of law reform in our resis- tance struggles. xenophobia. Introduction 27 gender. We must also be cautious not to believe what the law says about itself since time and again the law has changed. and proposes a trans politics that tirelessly interrogates processes of normalization by analyzing their impacts and revising its resistance strategies as it observes their unintended consequences. come through law. It also helps us understand why.

These political and economic changes must be considered in order to fully under- stand the conditions shaping trans resistance. we must move beyond the politics of recognition and inclusion. the rollback of 1960s and 70s welfare state and civil rights gains. This book places the rise of discourse about trans identities and advocacy for trans recognition in the context of broader politi- cal and economic developments—some mainstays of a late 20th- century political economy and other more recent transformations of state and civil society including the emergence of a neoliberal global economy. and the ascendancy of a lesbian and gay rights agenda articulated through liberal notions of privacy and equal opportunity. Critical Trans Politics. historical analysis help reconceptualize the role of law and rights in trans resistance struggles? Normal Life: Administrative Violence. and the Limits of Law raises questions about the usefulness of the most commonly articulated legal interventions for transgender rights: . Law reform tactics can have a role in mobilization-focused strategies. the rise of the nonprofit indus- trial complex (NPIC). the War on Terror.28 NORMAL LIFE I argue that because laws operate as tactics in the distribution of life chances that concern us. Transformative change can only arise through mass mobilization led by populations most directly impacted by the harmful sys- tems that distribute vulnerability and security. the rapid growth of imprisonment. but law reform must never constitute the sole demand of trans politics. what do promises of “anti-discrimination” or “equal opportunity” actually deliver? What might trans law reformers learn from social movements that have won formal legal protections but whose con- stituencies remain criminalized and economically marginalized? And how can such critical. Meaningful transformation will not occur through pro- nouncements of equality from various government institutions. we must approach law reform tactically. In the face of increas- ing disparities in wealth and life chances domestically and globally. If we seek transformation that is more than symbolic and that reaches those facing the most violent manifestations of transphobia.

This attention to the distribution of life chances acknowledges that even when laws are changed to say different things about a targeted group. It seeks remedies that punish individuals who do those harmful things motivated by bias. Those law reforms do nothing to prevent violences like criminalization and immigration enforcement.. The anti-discrimination/hate crime law strategy relies on the belief that if we change what the law says about a particular group to make it say “good things” (e.g. that group may still experience disproportionate poverty as well as lack of access to health care. In order to properly understand power and transphobic harm. Introduction 29 anti-discrimination laws and hate crime laws. creating laws that say you are not allowed to fire someone just because they are trans) and not “bad things” (e. or even primarily. It asserts that a different location within the law—the administrative realm— may be the place to look for how law structures and reproduces vulnerability for trans populations. This analysis misunderstands how power functions and can lead to approaches to law reform that actually expand the reach of violent and harmful systems. we need to shift our focus from the individual rights framing of discrimination and “hate violence” and think more broadly about how gender categories are enforced on all people in ways that have particularly dangerous outcomes for trans people. Legal systems that have official rules of nondiscrimination still operate in ways that disadvantage whole populations—and this is not due solely.. to individual bias. and education. Such a shift requires us to examine how administrative norms or regularities create structured insecurity and (mal)distribute life chances across populations. . This approach to law reform relies on an individual rights framework that emphasizes harms caused to individuals by other individuals who kill or fire them because they are members of the group. eliminating laws that explicitly criminalize people for cross- dressing or having certain kinds of sex) then those people’s lives will improve. housing. I argue that the anti- discrimination/hate crime law strategy actually misunderstands how power works and what role law has in the functions of power.g.

30 NORMAL LIFE I argue for a model of thinking about power and law that expands our analysis to examine systems that administer life chances through purportedly “neutral” criteria. sexist. We look more at what legal regimes do rather than what they say about what they do. we look more at impact than intent. rather than just changing the window-dressing that attends them. xenophobic. This allows us to shape resistance strategies that have a better chance at actually ad- dressing the conditions that concern us.”8 This argument suggests that those interested in ending white supremacy must look critically at purported legal victories. and transphobic outcomes are pro- duced. yet declarations of universal rights often actually mask and perpetuate the struc- tured conditions of harm and disparity faced by those groups. homo- phobic. ableist. Derek Bell’s “interest-convergence” theory asserts that “[t]he interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites. includ- ing the law. recognizing that they are often merely adjustments that maintain systems of control and . We look at how vulnerability is distributed across populations. They have critiqued the law reforms of the civil rights movement. this book emerges out of the space opened by Critical Race Theory’s comprehension of the paradox of rights: rights mediate emergent social groups. While there are a number of critical paradigms for evaluat- ing legal equality. and arguing that racism is inherent in US law. suggesting that those reforms did not sufficiently alter conditions facing peo- ple of color. Critical Race Theory is an intellectual movement that emerged in the late 1980s that studies and seeks to transform the relationship between race and the structures of contemporary society. and rights claims often serve as the resistance framework of such groups. Kimberlé Crenshaw. Through this lens. Key thinkers in the Critial Race Theory field such as Derek Bell. not just among individuals. understanding that those systems are often locations where racist. and Cheryl Harris have made argu- ments that have rocked legal scholarship at its roots.

Critical Race Theory has identified the barriers that dominant legal models of intentional discrimina- tion—with their focus on punishing individual discriminators— have created to solve subordination. Cheryl Harris’s article “Whiteness as Property” exposed how US property law is rooted in racialized property sta- tuses that attend chattel slavery. and land theft. Immigration and Customs Enforcement (ICE). genocide. It has also drawn attention to the distributive functions of law. Introduction 31 maldistribution. and other key interventions made by criti- cal race theorists.S. . U.10 Her work argues that people who experience multiple vectors of subjection. and Education. and how US law has continued to produce whiteness as a form of property at the expense of people of color. and federal agencies like the Customs and Border Protection. Child Welfare. Normal Life takes up this approach and expands its analysis further into the domain of administrative law in order to illustrate how modes of administrative governance produce what we come to think of as natural or pre-existing identities. Motor Vehicles. These works. we should look at the administrative governance that typically comes from state agencies like depart- ments of Health.9 Kimberlé Crenshaw’s theory of “intersectionality” has significantly influenced scholar- ship and social movements far outside of law schools. Normal Life draws from the insights of Critical Race Theory and also modifies and reworks these insights for the specificities of a critical trans analysis. providing solutions that avoid the liberal pitfall of individualizing conceptions of both oppres- sors and victims. This book argues that rather than looking to the typical areas of “equality law” such as anti-discrimination law or hate crime law to inquire about and intervene in harm facing targeted and vulnerable populations. face unique harms not captured by racial justice movements that use male experience as the norm or feminist movements that use white women’s experience as the norm. for example racism and sexism. have inspired critical scholars in law and many other fields to examine the operations of law and racialization from new perspectives. Corrections.

I will specifically discuss three areas of law and policy that have a very significant impact on trans people’s lives: rules that govern gender classification on ID. rules that govern sex-segregation of key institutions (shelters. and the Environmental Protection Administration. the Bureau of Prisons. prisons. the Food and Drug Administration. group homes.11 This book reconceptualizes the role of law reform in trans resistance strategies. and rules that govern access to gender-confirming health care for trans people. arguing against a focus on what the law says about trans people and for a focus on intervening in the law and policy venues that most directly impact the survival of trans people as part of a broader trans politics whose demands are not limited to formal legal equality. and what can be done about it. By exposing the limits of formal legal equality and examining the conditions facing trans communities. Such an analy- sis allows us to reframe trans politics in terms of the distribution of life chances and brings us to new and different questions about why trans people suffer from economic marginalization.32 NORMAL LIFE the Bureau of Indian Affairs. and deportation. and that those categories manage both the population and the distribution of security and vulnerability. Rather than a focus on changing the law in ways that are supposed to declare the equality and worth of trans people’s lives but in fact prove to have little impact on the daily lives of the people they purportedly protect. jails. this book brings us to the larger question . crimi- nalization. perhaps because they have been the targets of gay and lesbian legal reform. a distributive analysis suggests a focus on laws and policies that produce systemic norms and regularities that make trans people’s lives administratively impossible. I argue that administrative systems that classify peo- ple actually invent and produce meaning for the categories they administer. bathrooms). Rather than understanding administrative sys- tems merely as responsible for sorting and managing what “natu- rally” exists. Normal Life asks us to redirect attention away from recognition-and-inclusion-focused law reforms that are often assumed to be the natural legal reform targets of trans resistance.

and other struggles against colonialism. the spectacularized. the book proposes a politics based upon the so-called “impossible” worldview of trans political existence. Chapter One. and many nontrans activists and nonprofiteers that the existence of trans people is impossible and/or that our issues are not politically viable. Such a politics builds from the space created by the insistence of government agencies. As an alternative. and capitalism has far more to offer trans people.” including policy changes like privatization. such as cross-race. Normal Life suggests these challenges are potential starting points for a trans politics that openly opposes liberal and neoliberal agendas and finds solidarity with other struggles articulated by the forgotten. Legal equality goals threaten to provide nothing more than adjustments to the window-dressing of neoliberal violence that ultimately disserve and further marginalize the most vulnerable trans populations. immigration enforcement. and tactical tools and models to other emerging formations that are struggling to formulate resistance to neoliberalism in these complex and difficult times. and the unimaginable. disability justice politics. the inconceivable. Finding overlap and inspiration in the analysis and resistance articulated through women of color feminism. strategic. and cross-ability alliances. trade liberalization. social service providers.” introduces the central concern of this book: what does or could trans politics mean in the current political context and how should we understand strategies for trans legal reform in these times? To begin that inquiry. criminalization. media. It suggests that such goals undermine the disruptive potential of trans resistance and also threaten to divide potential alliances among trans people. labor and environmental . as they have in lesbian and gay politics. I describe the set of trends or- ganized under the term “neoliberalism. “Trans Law and Politics on a Neoliberal Landscape. cross- class. Developing this framework for our resistance will also contribute trans understandings of the necessary analytical. prison abolition. Introduction 33 of whether legal recognition and inclusion are felicitous goals for trans politics.

the abandonment of essential poverty alleviation programs and social services by local.13 These trends have had significant impacts on social movements in the United States. and instead become legitimizing tools for white supremacist. the elimination of health and welfare programs. abandoning goals of radical redistribution and taking up agendas that fit more closely with neoliberal ideas. the ability of social movements to respond to these changes has been hampered by the drastic consolidation of the corporate media. harming their constituents and undermining the effectiveness of their resistance. and military inclusion) that pro- vides little redress for the growing numbers of people confronting reduced life chances in the face of an increasing wealth divide.15 In the context of these trends. wealthy philanthropists’ control over movement agendas through the nonprofitization of activism. These forces. and the expansion of im- prisonment. capital- ist. and the targeted dismantling of the most important movements of the 1960s and 1970s by the Federal Bureau of Investigation (FBI). state. both of which shifted massive public resources toward racist surveillance and increased criminalization of poor people and people of col- or. a rollback of 1960s civil rights gains. and federal governments. a dismantling of our social safety nets. increased immigration enforcement. meaning that the words and ideas of resistance movements are frequently recast to produce results that disserve the initial purposes for which they were deployed. together. marriage rights.12 The hallmarks of neoliberalism are co- optation and incorporation. and the advent of the War on Drugs and the War on Terror.34 NORMAL LIFE deregulation. activists and scholars have ob- served that many social movements have become more conser- vative. . In the last three decades we have seen a massive growth in imprisonment. decreasing job security. have contributed to an over- all upward distribution of wealth and drastically decreased life chances for poor people.14 At the same time. patriarchal.16 Lesbian and gay rights work has received a great deal of critique on this front as it has drifted toward a legal rights agenda (anti-discrimination protections. ableist political agendas.

Chapter Two analyzes the limitations of these two reforms. “What’s Wrong with Rights?.” examines the most common legal interventions taken up in the struggle for trans rights thus far: gender identity–inclusive anti-discrimina- tion and hate crime laws. and exclusions of gender-confirming health care for trans people from Medicaid. and sex. lack of access to ID that reflects the current gender. Should trans activism follow the strategies. disability. and violence that trans people face every day. deemed “successful” by some. and proposes an approach aimed at producing resistance that will actually address the crimi- nalization. for example. residential treatment programs). Further. and end- less war. Courts have made it very hard to prevail in cases attempting to enforce anti-discrimination laws. and various health care programs for people in state custody. of the lesbian and gay legal reform agenda? For which trans people would such strategies win gains and for whom might they worsen conditions? This book argues that we must depart from the models created by most well-fund- ed lesbian and gay rights nonprofits. anti-discrimination laws (if/ where they are in place) are generally not enforced for any of the groups covered by them. private insurance policies. Anti- discrimination laws have failed to address the legal issues that create the greatest vulnerabilities for trans people: criminaliza- tion. As critiques . an important set of ques- tions has emerged. immigration enforcement. are still commonplace despite being officially illegal. shelters. placement in sex-segregated facilities (bath- rooms. Chapter Two. and dis- crimination on the basis of race. These strategies have been marketed by the most well-funded lesbian and gay legal reform organiza- tions as the benchmarks of trans equality and the key aims of the trans component of the emergent “LGBT” politics. examining why the campaigns that have been deemed successful in these areas have not sufficiently improved the lives of trans people. and trans populations have increasingly described experiences of economic marginalization and criminalization. As trans activism has emerged more visibly. poverty. Introduction 35 growing criminalization and immigration enforcement.

particularly the discrimination principle’s reliance on individualism. it suggests that focusing on trans experiences not addressed by the discrimination/hate crime paradigm can lead us to a more robust vision of what structural disparity is. this chapter introduces core concepts from Critical Race Theory that explain why rights frameworks that focus on individual discrimination through the “perpetrator perspective” fail and how they obscure structural racism. and having examined how the shift toward such a limited “formal legal equality” approach is part of a neoliberal abandonment of the broad redistribution demands of prior social movements. Because trans people are frequent targets of criminal punishment systems and face severe violence at the hands of police and in prisons every day. we now uncover a framework for thinking about law and power that better understands the harm facing trans populations. and what role law reform might have in addressing it. Further. To get at the limitations of these strategies.” introduces an alternative way of thinking about power and systems of meaning and control that departs from traditional legal frameworks of discrimination and equality. Having analyzed the limitations of what the discrimination doctrine allows us to recognize as subjection (intentional. and reflects the marginalization being described by trans people. “Rethinking Transphobia and Power— Beyond a Rights Framework. investment in such a system for solving safety issues actually stands to increase harm and violence. what the law’s role in producing it really looks like. Chapter Three. this chapter illustrates how the US legal system’s conceptualization of racism. hate crime laws do nothing to prevent violence against transgender people but instead focus on mobilizing resources for criminal punishment systems’ response to such violence. simultaneously hides and preserves conditions of subjection. This chapter explains key concepts from critical disability studies. Using these tools. Critical Race . individual discrimination).36 NORMAL LIFE of deterrence models of criminal punishment have shown else- where.

A brief summary of the current state of the law in these realms in the United States re- veals the inconsistency of laws and policies in this area between different states and even between different agencies within any given state. and redirect our attention from discrimination-focused law reforms toward the administrative apparatuses in law that mobilize race. and instead interrogates empty declarations of “equal opportunity” and “equality” promoted in US law.19 Focusing on key administrative barriers to trans survival. and ability classifications to promote and maximize certain forms of life and ways of being. and access to health care. individual bias or violence. “Administrating Gender. Introduction 37 Theory. produces .18 and imprisonment for trans people. this chapter argues that the best opportunities for legal intervention to combat transphobia are different from what is imagined by the legal equality model. sex segregation. especially access to ID. when combined with the rigidity of administrative gender enforcement. These inconsistencies expose how gender is already an unstable category in US law. and from the work of Michel Foucault to describe a way of thinking about power based in an analysis of the distribution of life chances. This instability. women of color feminism. generating a different way to think about law reform work on the whole. and access to health care. The conceptual tools introduced in this chapter allow us to think in terms of populations and the allocation of resources and life chances.17 homelessness. Chapter Four. placement in sex-segregated facilities. Using these conceptual tools. This analysis allows a critical approach to the role of legal reform in trans resistance. These interventions provide an entry point into thinking about subjection and control beyond the realm of intentional. gender.” applies this analysis to three specific areas of law where the administration of gender norms causes trans people the most trouble: identification. we examine the complex vectors leading to high rates of unemployment. and trace how the administration of life chances through traditional gender categories produces trans vulnerability to premature death.

indigeneity. Chapter Five. With this understanding. It further conceptualizes how the administrative focus of areas like poverty law. Administrative systems often appear “neutral.” con- siders the broader question of how to place law reform projects within trans movement building. Rather than imagining law or government as the protector of trans people from bashers or discriminators. with critics arguing that such focus yields only formal legal equality gains that do not reach the most vulnerable . we can focus less on what the law says about itself and the rights of individuals and more on what impact various legal regimes have on distressed populations. poverty.38 NORMAL LIFE myriad catch–22s that generate insecurity and violence in the lives of trans people. Viewing trans marginalization through an examination of law’s administrative functions rather than a focus on whether law declares certain groups equal opens a space for imagining a trans resistance law reform agenda that centralizes race. criminal and immigration enforcements systems.” especially when discrimination has been framed as a problem of individuals with bad intentions who need to be prohibited from their bad acts by law. we see that the very administrative systems that determine what populations the law exists to promote and protect are the greatest sources of dan- ger and violence for trans people. This chapter illustrates how anti-dis- crimination and hate crime laws fail to target the most urgent legal problems of trans populations. work eligibility verifica- tion programs. The most well-funded lesbian and gay rights organizations have been criticized for focusing on law reform goals. immigration. and health care programs that purport to distribute life chances through neutral and standard criteria are in fact sites of significant harm. and disability law are the proper targets of trans law reform interventions. “Law Reform and Movement Building. especially in the context of the War on Terror in which inconsistencies in identifying information have become a more significant obstacle to most basic and essential administrative processes. and disability analysis. This chapter reveals how systems like public benefits and housing programs. immigration law.

Introduction 39 targets of homophobia. if they are invited into membership to do broader work. Often those who come for legal help on a particular issue. turning individual experiences of harm into a shared un- derstanding of collective struggle. sometimes shifting paradigms with that exposure. access to full health care. and an end to immigration enforcement cannot be conceptualized or won within the realm of US law. the elimination of poverty. legal help can be an excellent point of politicization for trans people. will learn about experiences different from their own. eviction. Instead. All four of these roles point to an organizing theory of change focused on mass mobilization that raises demands that exceed what can be accomplished in the narrow realm of contemporary litigation and policy reform. centralizing law reform demands and the leader- ship of lawyers only stands to limit the horizons of trans political interventions—and puts trans resistance work at risk of colluding with a neoliberal agenda and with the white supremacy and set- tler colonialism that US law is founded upon. I suggest four specific roles for law reform projects. they can be tools for helping trans people survive in order that they might participate in and lead grassroots organizing work. Third. For this reason. law reform and individual legal assistance (deporta- tion. and criminal defense. First. Demands that are emerging in trans communities. law reform campaigns can produce opportunities for organizing that develop new leaders. and deepen and expand their po- litical understanding and commitment to resistance. . law reform strategies can be part of campaigns that aim to expose contradictions in systems of con- trol. for example) are vital tools for trans movement organizations in order to support the mem- bers they seek to organize. but law reform should not be the central demand of trans resistance. because of the enormous role of harmful administrative and legal apparatuses in trans people’s lives. grow solidarity analysis. Second. Because trans people face enormous vulnerability and violence in a variety of legal systems. like prison abolition.20 I argue that there is a place for law re- form projects within effective trans resistance. Finally.

especially nonprofitization. Trans resistance is emerging in a context of neoliberal politics where the choice to struggle for nothing more than incorpora- tion into the neoliberal order is the most obvious option. poor work- ing conditions for people without race. and models that racial and economic justice–focused trans organizations are developing to address them. This chapter sug- gests ways that trans activists might avoid common traps inher- ent to this institutionalization. These new formations are dominated by norms typical of other professions. It looks at some of the major concerns with institutionalization. and hierarchical decision-making structures.21 which articulates the ways that elite strategies like law reform. a tool developed by the Miami Workers’ Center (MWC). nonprofit forma- tions that are dominant today. and education privilege.40 NORMAL LIFE Chapter Five. class. while components of social movements. the last few decades have seen an explosion of nonprofits that have changed movement work and expecta- tions to look more like a career track for people with graduate degrees. Taking on the institutional norms associated with “professionalism” has decreased the accountability of much movement work. Activists and scholars have observed a shift in movements from mass-based grassroots strategies of the 1960s and 70s to professionalized. including unequal pay scales. and explores principles. Long term goals of transformative change have been replaced with short term fundraising goals managed by people who get paid to shape the work to match funders’ tastes. funded.” also introduces the Four Pillars of Social Justice Infrastructure. undermine the possibility for mass mobilization that produces transformative change when they are centered. We can translate the pain of having community members murdered every month into more punishing power for the criminal system . By “professionalized” I mean to point out that whereas resistance movements have previously been dominated by membership-based grassroots organizations with little staffing. “Law Reform and Movement Building. strategies.

Inside this impossibility. and cannot fit anywhere. acknowledging that legal equality demands are a feature of systemic injustice. and ever-growing wealth dispar- ity. Trans people are told by the law. A critical trans politics is emerging that refuses empty promises of “equal opportunity” and “safety” un- derwritten by settler colonialism. not a remedy. yet law reform strategies beckon us to join the neoliberal order. as they continually leave us aside. classist. sexist. Introduction 41 that targets us. private dis- criminators. what they offer instead is the legitimization and expan- sion of systems that are killing us. It is confront- ing the harms that come to trans people at the hands of vio- lent systems structured through law itself—not by demanding recognition and inclusion in those systems. yet watch as the majority of trans people remain unemployed. This politics aims to center the concerns and leadership of the most vulnerable and to build transformative change through mobilization. We are told by the better-funded lesbian and gay rights groups. but by working to dismantle them while simultaneously supporting those most ex- posed to their harms. The paths to equality laid out by the “suc- cessful” lesbian and gay rights model to which we are assumed to aspire have little to offer us in terms of concrete change to our life chances. and consigned to prisons that guarantee sexual assault and medical neglect. We can fight to have the state declare us equal through anti-discrimination laws. cannot be seen. and our families that we are impossible people who cannot exist. kept out of social services and health care. that we are not politically viable. Abandonment and imprisonment remain the offers of neoliberalism for all but a few trans people. racist. our lives are not a political possibility that can be conceived. This critical trans politics is part of a larger . I argue. and xenophobic imprisonment. lies our spe- cific political potential—a potential to formulate demands and strategies to meet those demands that exceed the containment of neoliberal politics. ableist. state agencies. incapable of getting ID. cannot be classified. It is reconceptualizing the role of law reform in social movements.

2000). coalitional politics. 1997). and class. Scenes of Subjection: Terror. while insisting—as a political collectivity—on ‘something else to be. 2. but instead marked a .42 NORMAL LIFE framework of resistance that must grapple with the complex re- lationships between power. xiv. and in so doing. “Rationalizing Violence in the New Racial Capitalism. sexuality. which make singular identifications impossible. Jodi Melamed has argued. displaces a U. “Women of color feminism’s ‘theory in the flesh’ demands a reckoning with the full materiality of the lives of women of color in a way that gives the lie to the divisions of knowledge and epistemic structures that at once constitute and disavow the links between liberal freedoms and regulatory violence. equivalence. “Women of color feminist prac- tice identifies the state as a site of violence. .” Critical Ethnic Studies and the Future of Genocide Conference. gender. 2011. Further. Slavery. University of California. is a particularly useful tool for understanding how the formal end of slavery did not have the liberatory significance for Black people in the United States that national narratives suggest. and a careful examination of the intersecting processes of race. Chela Sandoval. and identification.S. and the obstacles social movements are facing in the context of neoliberalism. law. NOTES 1. . Riverside. women of color feminism’s insistence on difference. such as the mainstream white feminist movement. or race-based movements.’ on the need to act com- munally to craft social relations and value forms relatively unbound from those of capitalist globalization. nationalist subject formation based on homogeneity. 2006). 10. it displaces rights-based struggles. Methodology of the Oppressed (Minneapolis: University of Minnesota Press. . and Self-Making in Nineteenth Century America (New York: Oxford Press. not resolution. unlike single-axis forms of organizing. Saidiya Hartman’s book. and violence. As Grace Hong has observed. 3. The Ruptures of American Capital: Women of Color Feminism and the Culture of Immigrant Labor (Minneapolis: University of Minnesota Press. 54.” Jodi Melamed. traditional labor organizing. March 11.” Grace Hong.

this rigorous functionality. in the liberal state. does not have this unity. Crisis. Riverside. NC: Duke University Press. “Governmentality. 4. 1991). this individuality. . eds. . 2nd ed. Graham Burchell. Her work “examine[s] the role of rights in facilitating relations of domination. the state is no more than a composite reality and a mythicized abstraction. (London: SAGE Publications.” Michel Foucault. From this vantage point. Angela Y. 7. Racialization is a process that constitutes differential relations of value and valuelessness according to reigning economic-political orders. . Mitchell Dean.” 6. Punishing the Poor: The Neoliberal Government of Social Insecurity (Durham. .” PhD dissertation. Davis. Surplus. . 2007). Jodi Melamed provided a useful formulation of racialization and commentary on how it has shifted after what Howard Winant has called the World War II racial break in her remarks at the 2011 Critical Ethnic Studies Conference at the University of California. “the double bind of equality and exclu- sion distinguishes modern state racism from its antebellum predecessor” and “the wedding of equality and exclusion” is “commonplace . 103. 2010). City University of New York. . Colin Gordon. Craig Willse. while appearing to be (and being) a normative system that “merely” sorts human . Introduction 43 transition to new forms of the same relations of subjection. Golden Gulag: Prisons. “Surplus Life: The Neoliberal Making and Managing of Housing Insecurity. and Opposition in Globalizing California (Berkeley and Los Angeles: University of California Press. a feature of this continued subjection. 2003). and Peter Miller (Chicago: University of Chicago Press. Governmentality: Power and Rule in Modern Society. Foucault critiqued how those theorizing resistance often over- simplify their understanding of the state: “The state . . 2010. 37. . Loïc Waquant. 6. Ruth Wilson Gilmore. Are Prisons Obsolete? (New York: Seven Stories Press. . . She suggests that the national narrative about “equal rights” is. itself.” 9–10. emancipation ap- pears less the grand event of liberation than a point of transition between modes of servitude and racial subjection. 5. 2009). She writes.” in The Foucault Effect: Studies in Governmentality.

categories of racialized privilege and stigma determined by economic. disqualifying.” “multicultural American. safety. but we have an intensification of normative and rationalizing modes of violence. which work by ascribing norms of legibility/ illegibility and mandating punishment. or disposability for norm violators. and ideological criteria become unevenly detached from phenotype.” After the racial break. and industrial capitalist modes of constituting power. analyze. organize. for official anti-racisms. It precipitated out of and rationalized agrarian. profit or pleasure. white supremacist forms of violence continue. cultural. precipitating of the material circumstances it rationalizes. racialization converts the effects of differential value- making into categories of difference that make it possible to order. so that during various phases. physically coercive measures. negating. addressing those designated as valueless largely through punitive. white. and evaluate what emerges out of force relations as the permissible content of other domains of modernity (economy. official anti-racisms allow for greater flexibility in exercising and prescribing racialized terms of value and valuelessness. and violent. so that traditionally recognized racial identities—Black. racialization procedures also confer privilege or stigma in accord with limited repertoires of anti-racist value. governance). which itself is always on the move. Instead of a color line. exclusionary. colonial.” and “global citizen” emerge as privileged racial subjects. Here. Under white supremacist modernity. “white liberal. In a formally anti-racist liberal capitalist modernity. Asian. abandonment. development. law. while those without value within the circuits of . it is useful to cite Nikhil Singh’s definition of race as “historical repertoires and cultural and signifying systems that stigmatize and depreciate some forms of humanity for the purposes of another’s health. Importantly. the color line was an adequate cultural technology for converting processes of differential value-making into world-ordering systems of knowledge and valued and valueless human forms. In other words. Arab—now occupy both sides of the privilege/stigma divide.44 NORMAL LIFE beings according to categories of difference.

it is about who is seeking them. and Kendall Thomas (New York: The New Press. Cheryl I. Introduction 45 racialized global capitalism are disqualified as “unpatriotic. Harris.” “criminal. Second. Spira. 1996).” Race & Class . and the Seductions of Empire. “Mapping the Margins: Inter- sectionality. Jr. 357–383. 2004). Neil Gotanda. 100 (Winter 2008): 120–143. Global Lockdown. so the distinction is not about certain kinds of procedures or medications.” William and Mary Bill of Rights Journal 14 (2006): 1539–1582. “Brown v. Board of Education and the Interest-Convergence Dilemma. Cultural Politics. First.” Harvard Law Review 106:8 (1993): 1707. Ruth Wilson Gilmore. Kimberlé Williams Crenshaw.” 4-5. 11. The Twilight of Equality? Neoliberalism. “Whiteness as Property.” Harvard Law Review. That is politically significant because those who oppose coverage and provision of this care often cast it as ex- perimental and medically unnecessary.” Radical History Review . avoiding terms like “sex reassignment surgery” that focus on a small part of the total kinds of gender-confirming care that trans people often seek and are denied. which can include mental health care. Garry Peller. Bell. Kimberlé Williams Crenshaw. “Globalisation and US Prison Growth: From Military Keynesianism to Post-Keynesian Militarism. eds. the same programs that exclude coverage of this care or deny this care for trans people often cover it for non-trans people. Anna M.” “damaged. 14. no. 10. 93:(1980): 518. I use the term “gender-confirming health care for trans people” for a few reasons.” or “illegal. and Tamara L. and/or various surgical procedures depending on the needs of the individual. 8. Agathangelou..” in Critical Race Theory: The Key Writings That Formed the Movement. 12. Lisa Duggan. Harris. “Intimate Investments: Homonormativity. 13. Identity Politics and Violence against Women of Color. I use this term to refer to a range of care. 9. “Rationalizing Violence in the New Racial Capitalism. “From Stonewall to the Suburbs? Toward a Political Economy of Sexuality. and the Attack on Democracy (Boston: Beacon Press. Derrick A. Morgan Bassichis.” Melamed. hormone treatment.” “xenophobic. Angela P. D.


40, no. 2–3 (March 1999): 171–188.
15. Dylan Rodríguez, “The Political Logic of the Non-Profit
Industrial Complex,” in The Revolution Will Not Be Funded: Beyond the
Non-Profit Industrial Complex, ed. INCITE! Women of Color against
Violence (Cambridge, MA: South End Press, 2007), 21–40; and Ruth
Wilson Gilmore, “In the Shadow of the Shadow State,” in The Revolution
Will Not Be Funded, 41–52.
16. Harris, “From Stonewall to the Suburbs?”; Dean Spade and
Rickke Mananzala, “The Non-Profit Industrial Complex and Trans
Resistance,” Sexuality Research and Social Policy: Journal of NSRC 5, no. 1
(March 2008): 53–71.
17. A 2009 study found that 47 percent of transgender people sur-
veyed had experienced an adverse job outcome, such as being fired, not
hired, or denied a promotion, and 97 percent had experienced harass-
ment or mistreatment on the job based on trans identity. National Gay
and Lesbian Task Force and National Center for Transgender Equality,
“National Transgender Discrimination Survey: Preliminary Findings on
Employment and Economic Insecurity,”
and_research/trans_survey_preliminary_findings. December 1, 2009.
18. The same study found that nearly one fifth of respondents
(19 percent) reported that they had become homeless due to being
19. Ruth Wilson Gilmore has defined racism as “the state-sanc-
tioned or extralegal production and exploitation of group-differentiated
vulnerability to premature death.” Gilmore, Golden Gulag, 28. I find
this definition useful for thinking about how various systems of mean-
ing and control distribute chances at life and death. Because traditional
legal definitions of discrimination focus on finding an individual dis-
criminator who can be proven to have intended to discriminate, harmful
conditions that are faced by populations targeted for abandonment and
imprisonment cannot be addressed. Thinking about the distribution of
vulnerability to premature death across the population allows us to see
the significance of administration and let go of the focus on individual
wrongdoers and intent.
20. Angela P. Harris, “From Stonewall to the Suburbs?; Lisa Duggan,

Introduction 47

The Twilight of Equality?; Priya Kandaswamy, Mattie Eudora Richardson,
and Marlon Bailey, “Is Gay Marriage Racist? A Conversation with
Marlon M. Bailey, Priya Kandaswamy and Mattie Eudora Richardson,”
That’s Revolting: Queer Strategies for Resisting Assimilation, ed. Mattilda
Sycamore (New York: Soft Skull Press, 2006), 87–93; Kenyon Farrow,
“Is Gay Marriage Anti-Black?” June 2005, http://kenyonfarrow.
com/2005/06/14/is-gay-marriage-anti-black/; Chandan Reddy, “Time
for Rights? Loving, Gay Marriage and the Limits of Legal Justice,”
Fordham Law Journal, 76 (2008): 2849.
21. The Miami Workers Center “helps working class people build
grassroots organizations and develop their leadership capacity through
aggressive community organizing campaigns and education programs.
The Center also actively builds coalitions and enters alliances to amplify
progressive power and win racial, community, social, and economic jus-
tice. Through its combined efforts the Center has taken on issues around
welfare reform, affordable housing, tenants and voter rights, racial justice,
gentrification and economic development, and fair trade. [It] has spoken
out against war and empire, greed, racist policies, and discriminatory ini-
tiatives against immigrants and gay and lesbian people. The MWC office
has become a central site in the growing ‘storm’ of social justice that is
growing in South Florida. It is a locus of community power, individual
transformation, alliance building, hope, and inspiration.”

Chapter 3
Rethinking Transphobia and Power—
Beyond a Rights Framework

Having looked at the limits of a victim-perpetrator mod-
el, we can now ask what models of power we should use to think
more accurately about trans people’s experiences of violence,
poverty, and shortened lifespans and to inform our resistance. If
the passage of laws declaring the hateful, intentional acts of indi-
vidual perpetrators punishable does not improve the lives of trans
people and bolsters the very systems that target us, what should
we seek instead? A central argument of this book is that the stan-
dard law reform strategies most often employed to remedy the
problems faced by trans people fundamentally misunderstand the
nature of power and control and the role of law in both. Simply
put, they just will not work. In fact, they can even make things
worse. To address the violence and marginalization that shortens
trans lives, we have to re-conceptualize how those conditions are
produced and examine what kinds of resistance will actually alter
them. Merely declaring transphobic violence and exclusion illegal
is an ineffective use of law reform; other law strategies may be of
some use if employed as a small part of a broader trans struggle
that articulates demands that far exceed legal reform.
To more fully understand the harms facing trans people that
I described in the Preface, and to strategize resistance to them,
we need to break out of the narrow narrative that the current


law reform framework tells about how power works. Systems
of meaning and control that maldistribute life chances, such as
racism, ableism, transphobia, xenophobia, and sexism, among
others, operate in ways more complicated, diverse, and structural
than the perpetrator/victim model allows. Since we want and
need to understand why certain people fare poorly, do not have
what they need to survive, and experience high levels of violence
and vulnerability to premature death, we must analyze how power
operates beyond the individual discrimination model. Examining
other ways that power and control operate allows us to see which
vectors are addressed and accounted for by legal equality claims
and which are not, and whether legal equality claims produce or
reinforce certain systems of meaning and control while purport-
ing to resolve inequality and violence. We can also begin to for-
mulate resistance strategies that engage the sites and methods of
violence that concern us. I have adapted a framework for think-
ing about power, largely from the work of Michel Foucault, that
is helpful for understanding the role of law reform strategies in
social movements that work for transformation beyond the limits
of law.

Three Modes of Power
Perpetrator/Victim Power: Exclusion and Subtraction

The most familiar way of thinking about questions of power
within the liberal rights-focused framework that dominates con-
temporary politics is to examine incidents of intentional, individ-
ualized negative action, discrimination, exclusion, and violence.
Some examples that are commonly cited in this framework are
“whites only” signs at private businesses; individuals fired or not
hired because of gender, race, or sexual orientation; and beatings
and murders motivated by bias or hatred. This mode of power is
most easily recognized in liberal and rights-based frameworks as a
violation requiring remediation—usually individualized punish-
ment as per the perpetrator perspective. Another way to think

life taken away from individual victims because of the bad ideas put into action by perpetrators. a tax of products. the perpetrator perspective prevents us from looking at the unequal conditions that entire popula- tions experience because it focuses on the intentional actions of individual discriminators. a subtrac- tion mechanism. all while operating under legal regimes that . . reinforce. monitor. Foucault argues.2 The discrimination principle tells us that the government can forbid certain acts through law. and organize the forces under it: a power bent on generating forces. control. thinking about power in terms of repression or subtraction has been inscribed in law (e. As Alan Freeman argues. . making them grow. . health. levied on subjects. property. He argues that it is a mistake to view power as being “exercised mainly as a means of deduction ..”3 This perspective is useful in tracing how trans populations come into contact with administrative systems that distribute life chances and promote certain ways of life at the expense of others. This model has gener- ated a number of critiques because it fails to account for many of the problems that face groups on the losing end of systems of distribution who seem to remain there despite legal prohibi- tions on these kinds of negative individualized intentional action. optimize. “deduction” is not “the major form of power but merely one element among others. Foucault challenges the view that power is primarily about repression or subtraction and suggests that it is significantly more complex. rather than one dedicated to . labor and blood. working to incite. a right to appropriate a portion of the wealth. mak- ing them submit. This relies on an understanding of power as operating through top-down enforce- ment and posits law as a central location of declarations by the state that determine outcomes.1 As I discussed in ChapterTwo. . anti- discrimination laws and hate crime laws).g. Rethinking Transphobia and Power 103 about the functions of this mode is as power operating through “subtraction”—opportunities. goods and services. and ordering them. and that the law will determine the outcomes we want.” Instead.

we learn how to view our bodies. ableism. and homophobia operate through norms that produce ideas about types of people and proper ways to be. proper behavior. In such locations. trans- phobia. These norms are enforced through internal and external polic- ing and discipline.104 NORMAL LIFE declare universal equality. sexism. woman. and socialization are established and taught— are key technologies of disciplinary power. The two additional modes of power and control I want to discuss are what I will call the “disciplinary” mode of power and the “population-management” mode of power. . and ableism function necessitates these additional un- derstandings of how power operates. distribution. we are taught how to be a proper man. A more complete analysis of the multi- dimensional reality of how racism. control. and manipulates the body as a source of forces that have to be rendered both useful and docile. sexism. and allows us to begin to understand a broader set of relationships between law. the social sciences. how our actions make us into cer- tain types of people. Disciplinary Power: Norms of Good Behavior and Ways of Being The disciplinary mode of power refers to how racism. ableism. and education—where standards of healthfulness. and redistribution. homophobia.”7 Through disciplin- ary norms. boy.5 and how to practice techniques to modify ourselves to better fit the norms. produces individual- izing effects. Institutional locations such as medicine. This discussion also demonstrates why law reforms based on an individual/intentional model of discrimination not only do not resolve the harms they purport to. individual/intentional model of discrimination cannot conceive about the operation of systems like racism. sexism.4 Naming and examining these two modes al- lows us to see what the perpetrator/victim. transpho- bia. and transphobia.6 Foucault describes disciplinary power by saying that it “centers on the body. but serve to strengthen systems of maldistribution and control.

One often-discussed example. . less as a habitual sin than as a singular nature. . . the homosexual was now a species. sodomy was a category of forbidden acts. until then. . Rethinking Transphobia and Power 105 girl. a case history. or whatever qualities or types are discouraged. and personality. been seen as criminal infractions but not as manifestations of a deeper nature or way of being. mentally ill. intelligent. criminal. backward. punctual. slow. their perpetrator was nothing more than the juridical subject of them. lazy. The sodomite had been a temporary aberration. a life form. and a childhood. like homosexuality and heterosexuality. It was consubstantial with him. outgoing.and external policing that keep us occupied with our personal reform efforts. with an indiscreet anatomy and possibly a mysterious physiology. promiscuous. chaste. Classifications taken for granted today. made famous in the work of Michel Foucault. The nineteenth-century homosexual became a personage. in addition to being a type of life. were inventions of 19th-century European doctors and scientists who became interested in studying sexual acts that had. The impossibility of matching the ideal types generates a lifetime of self. or whatever qualities are valued in our context. is how understandings about the relationship of sexual behavior to identity have shifted over time. . addicted.8 Foucault wrote. how to be healthy. Nothing that went into his total composition was unaffected by his sexuality. These norms differ across institutions and subcultures and change over time. sociopathic. physiology.9 . and how to avoid (or attempt to avoid) being labeled as truant. As defined by the ancient civil or canonical codes. These doctors and scientists developed the notion that people who en- gaged in or desired to engage in certain sexual acts and/or gender expressions had a particular type of childhood. productive. and a morphology. . We learn the archetypes of proper being and the techniques for reforming our- selves toward these ideals. a past.

that sexual desire is central to identity. heterosexuality. monogamy. and that sexual desire and/or behavior are defining elements of identity. manners. The invention of various categories of proper and improper subjects is a key feature of disciplinary power that per- vades society. racial segregation. the welfare dependent mother. dietary norms. These norms are enforced through institutions that diagnose. and causal theories that have attached to these ideas. dress codes). and healthy. and that knowing and telling one’s sexual desires is essential to know- ing and telling the truth of one’s self. The idea that some people are gay and others straight. as well as through social or internal approval or shaming.. the criminal. the productive citizen. acceptable. Of course. The range of debates about homosexuality that have occurred since the invention of the category tend to take for granted that it is a category of persons. The creation and maintenance of such categories of people (e. termi- nology. natural. take formal or informal disciplinary action. Through these . Instead.g. evaluate. this process has occurred not just in the realm of sexuality. the terrorist) establish guidelines and norms (e. the homosexual.106 NORMAL LIFE The theories of sexology that Foucault describes emerging in the 19th century changed—though they still underlie con- temporary “gay brain” and “gay gene” research—and produced a set of entrenched cultural ideas that guide how people see each other and themselves with regard to the significance of sexual de- sire. The idea posited by those early sexologists that homosexual desires or acts make someone a certain type of person—a ho- mosexual—rather than simply a range of behaviors and desires that anyone could act upon or experience was thoroughly taken up and forms a key premise of today’s lesbian and gay politics. Resistance to pathologizing theories about homosexuality did not reject the idea that homosexual acts and desires are a core aspect of identity. punctuality.. this idea was entrenched as people claimed those identities as their own and invested in a politics focused on declaring those identities as good.g. remains present despite differences in valuation. or require trainings.

Rethinking Transphobia and Power 107 operations. The labels and categories gener- ated through our disciplined behavior keep us in our places and help us know how to be ourselves properly. Foucault suggested that as these norms become internalized. patriot. however. using violence and separation from family and community to enforce European American ways of being. of enforcing gender. manager. race. soldier. self-regulation would come to displace directly coercive means. and Rey Chow10 have described. and colonialism. girl or boy. Another example is the forced assimilation of indigenous people in the United States through boarding school programs that forbade young people from speaking indigenous languages or engaging in indigenous cultural practices and forced them to conform to European gender norms. class. student. reveals that violence does not end with discipline’s emergence. Examples of violent manifestations of enforcing these norms come to mind easily. thoughts. ability. as anti- colonial re-readings of Foucault by theorists such as Gayatri Chakravorty Spivak. others. Many have taken this concept of discipline to denote a reduction of violence because control often becomes internalized and thus rendered largely invisible. This might seem to suggest that disciplinary power is somehow “softer” or less violent than other forms of control. Consider involuntary psychiatric treatment aimed at changing the mental processes and capacities of people whose behavior or expression is deemed outside certain norms. An examination of race. and the world. and behaviors. or member of our subcultural group. These norms and codes of behavior reach into the most minute details of our bodies. gender. we all learn the norms that govern being a proper man or woman. corporeal violence and looming threats of violence have accompanied and bolstered these forms of control. They permeate every area of life down to the smallest details of .11 Examples like these are everywhere in culture—violence is a key means of social control. and other norms. These norms shape how we understand ourselves. worker. parent. age-appropriate dresser. di- eter. Ann Laura Stoler. member of our racial group. But.

to the broadest systemic standards of how we keep time.108 NORMAL LIFE how we chew our food or walk or talk. and come to identify and understand human life. and proposed alternatives ranging from natural hairstyles to polyamory to vegetarianism to collective governance structures. Christianity. heterosexuality. they are engaging with the disciplinary mode of power. but it was taken up broadly at that time by Puerto Rican. lesbian and gay. Islamaphobia. and xenophobia that the War on Terror has wrought. Since the advent of the War on Drugs. among others. Such groups examined white beauty standards. These groups have also made their own media to represent experiences erased by mainstream media. and proposing alternative ways of being as legitimate. heterosex- ism. they are engaging with disciplinary power. gender binarism. and other norms. monogamy. is a rich tradition that has sought to document and expose sexist media portrayals and produce alternatives. Resistance to the disciplinary mode of control has frequently focused on opposing norms that center whiteness. and women of color groups. Similar work has been taken up by immigration activists. Black Power. When social movements cultivate critiques of media representa- tions of their communities as lazy. similarly. beauty. Entire media-watch . intelligence. maleness. hierarchical governance styles. and reason that produce violent hier- archies of value. or mentally ill. measure productivity. Black and youth resistance groups have analyzed and critiqued mainstream media representations of Black youth that fuel racist myths and policies. White feminist activists and in- tellectuals in the 1970s are a commonly cited example of this type of work. These resistance strategies often focus on expos- ing disciplinary norms as norms. criminal. Feminist media critique. and standards of health. When activists form consciousness-raising groups that encourage people to question standards about how they see their own bodies and identities and replace those norms with other ideas that they consider better. point- ing out the racism and xenophobia that fuels coverage of immi- gration issues in the media while simultaneously creating media to document the racism.

trans identity. ableist. and sociology.13 that refusing to hire workers with accents different than what is considered standard in the United States is not discrimination on the basis of national origin. challenges to disciplinary norms and standards often fail. population management is perhaps the mode of power that is least comprehended and addressed through liberal claims to rights and formal legal equality. and reflect a desire to re-code the meanings of certain acts or identities. preg- nancy. an illness. criminology. Foucault de- scribes the difference between this kind of power and other kinds . Those battles are about resistance to particular disciplinary norms and standards. Disciplinary control is inadequately addressed by law reform– centered strategies for change.. Population-Management Power: The Distribution of Life Chances As I suggested earlier. sexism. and transphobic standards in place. homosexuality. leaving racist. ableism. obesity. drug use). often emerging from medicine.14 and that forcing female employees to wear heavy makeup and highly gendered clothing does not amount to sex discrimination. xenophobic. Rethinking Transphobia and Power 109 organizations have been created in many movements to specifi- cally take up media critique and response work. Resistance at the level of disciplinary power can also be seen in instances when controversies emerge over whether or not something should be treated as a crime.12 that firing a worker perceived as male by the employer for wearing pearls does not constitute sex discrimination. or just one way of being among many others (e.g. sexist.15 Because law mostly relies on the individualized perpetrator/victim mode of power when determining whether racism. Law reform efforts taken up under the banner of anti-discrimination have often failed to alter these norms. homophobic. Courts have found that forbidding workers to wear braided hairstyles common to Black cultures is not race discrimination. or xenophobia constitutes a violation.

” This mode includes interventions that impact the popula- tion as a whole. which distributes life chances across populations.17 James C. the Census. but of disposing things: that is to say. military conscription. of employing tactics rather than laws. social wel- fare programs (Social Security. drivers licensing. This kind of power. Scott describes how the modern nation-state is cre- ated through the advent of population-level modes of governance. by doing so. birth registration) are technologies of this mode of power. and identity documentation programs (passports. rather than that law is the most important form of power. public assistance). These programs operate through purportedly neutral criteria aimed at distributing health and security and ensuring order. language. They operate in the name of promoting. protecting. land ownership mo- dalities (freehold estate rather than regionally specific schemes of common land-sharing). criminal punishment systems. It suggests that power is not primarily operating through prohibition or permission but rather through the arrangement and distribution of security and insecurity. through a certain number of means. “it is a question not of imposing law on men. such and such ends may be achieved. im- migration policy and enforcement. and other mechanisms creates state-ness itself by facilitating such basic processes as revenue generation. .”16 This decentralized view of law suggests that laws are merely tactics. and enhancing the life of the national population and. Broad- based programs—in fact the very programs that constitute the nation itself—such as taxation.110 NORMAL LIFE of power. produce clear ideas about the characteristics of who the national population is and which “societal others” should be characterized as “drains” or “threats” to that population. is what I am calling “population manage- ment. Scott shows how the ability to gather standardized data across the population. and even of using laws themselves as tactics—to ar- range things in such a way that. Medicaid. saying. usually interventions undertaken through the logic of promoting the health or security of the nation. facilitated by the creation of standardized weights and measures. naming practices.

man. woman. and even stable and continuous time-space systems. the imposition of a common currency. standardized practice produce and require the identification of “othered” populations. institutions and personnel.18 Mitchell Dean explores a similar theme in his work on Foucault’s theory of governmentality when he writes The internal pacification of a territory. certain standards of literacy and language. adult. the distinction between the national population and its constitu- tive others has always been made through a process of gendered racialization. from its founding. In the United States. and militarism. if not permanent. or student that are enforced on individuals while the population-management mode of power mobilizes those stan- dards and meanings to create policies and programs that apply generally. The nation-state was historically constructed through the subordination of various arenas of rule to a more or less central authority and the investment of the duty of the ex- ercise of that authority to long-standing. In the post–civil rights era. when law has purportedly become “color blind” and otherwise equal. The disciplinary mode of power establishes norms for being a proper productive citizen. explicit . Rethinking Transphobia and Power 111 social control. Gendered racialization was the condition of pos- sibility for the theft of land and labor that established the nation. These general policies and programs use classifications and categories to reach their targets rather than operating on the individual level. the establishment of monopoly over the use of legitimate violence and taxa- tion. worker. The distinction between the national population marked out for protection and cultivation and those deemed “internal enemies” or “threats” or “drains” continues to operate through racialized- gendered frameworks.19 The programs that constitute the nation by pacifying the territory and producing population-wide regimes of authorized. are all integral to the process of state formation. a common set of laws and legal authorities.

112 NORMAL LIFE race and gender classifications are rarely written directly into the design of these programs. and the exclusion of certain populations from trades. In fact. the internment of Japanese and Japanese Americans.22 Depictions of immigrants of color today and historically have suggested that they take jobs needed by white people and/ or citizens. Support for these popu- lation-level programs is mobilized by the use of racist and sexist images that construct ideas of “us” and “them”—a national popu- lation that needs protection and constitutive others who are cast . A memorable example is the way the depiction of “welfare queens”—portrayed as Black single mothers “cheating” the welfare system—was used to support the elimination of certain public assistance programs in the 1990s. Even though explicit racial and gender exclusions are less frequently written into law. relying on falsified and exag- gerated anecdotes about women defrauding welfare systems. to name but a few. even when research shows that these assertions have no basis. de jure racial segregation. shameful historical examples such as the enslavement of millions of Africans. implying that remaining dis- parities are based on personal shortcomings since equal opportu- nity now reigns. but that still ac- complishes its racist/sexist purpose. ideas about race and gender are com- monly mobilized to support a general policy or program that may not explicitly target a group on its face.21 Another example is how the demonization of Latin American immigrants is used to justify heightened immigration enforce- ment. voting restrictions.23 A third example of the mobilization of racist and sex- ist images to promote policies that are neutral on their face but have a racialized-gendered impact is how the mythology of Black criminality is produced and used to justify a range of War on Drugs policies. from sentencing enhancements to exclusion from public housing and higher education.20 Ronald Reagan famously invoked this mythic image to justify his attacks on welfare programs. are often evoked to demonstrate how “fair and equal” US law and culture have become in contrast to how the United States was before.

As a result. rooted out. drawing from long-existing racist de- pictions that perpetually posit white people as chaste. These policies and programs distribute life chances in a way that does not focus on the individual but rather intervenes on swaths of populations through particular charac- teristics. Other characteristics that put . violent. and people of color as various combinations of promiscuous. Examples include changes to public assis- tance programs. responsible. and the War on Terror have relied on and reproduce racialized-gendered images of the national population. dangerous. even though the campaigns to cut benefit programs or increase immigration enforcement were mobilized by racist images and primarily impact people of color. Because these population-level policy programs. intelligent. or enhancements to immigration enforcement that are crafted in ways that have the greatest impact on women and people of color. increases in drug sentencing. and unintelligent. lazy. are actually mobilized through racialized- gendered ideas of the nation. Rethinking Transphobia and Power 113 as threats and drains to that population. independent. and because they produce and re- produce racialization and gendering of populations as they come to exist. or extinguished. foreign. Policies and programs passed through a mobili- zation of racist and gendered images will also impact some people not specifically targeted during the mobilization of those images. social welfare. the War on Drugs. even when they do not explicitly name race and gender in their texts. immigration) always entails the mobilization of ideas about what kind of life must be promoted and what kind of life is a threat and must be left out.24 The campaigns waged to promote Welfare Reform. education. dependent. particularly women of color.and gender-specific detri- mental ramifications. Some white people will also lose welfare benefits or be deported. Foucault helps us understand how producing stateness through population-level programs (including taxation. and industrious. policies and programs that purport to be race and gender neutral will have race. it is not surprising that these programs have racialized- gendered impacts. military conscription.

The individual/intentional discrimination model would ask us to believe that resolving racial inequality in the economy might be best achieved by punishing people who discriminate on the basis of race in the workplace or in offering credit. poverty. enhance vulnerability in these systems.114 NORMAL LIFE people outside the norms of national identity. These examples do not demonstrate the kind of nexus between intention and impact that is imagined in the realm of individual/intentional discrimination models. The creation of racialized property statuses at the founding of the United States through slavery and land theft from indigenous peoples were key to establishing wealth for white populations and poverty for people . and in fact can impact some people not belonging to the primarily targeted group. The impact of population-level operations of power. operating on definitions of racism and sexism that require individual intent and a one-to-one nexus of intent and impact. We can see this in the racial wealth divide in the United States. and that eliminating such behaviors would create a racially neutral and fair economy. in fact. the racial wealth divide in the United States stems from—and is maintained by—population- level interventions that have ensured the accumulation of wealth by a small number of white people and ensured the inability to accumulate wealth for most people of color. and yet they create enormous population-level disparities in life chances. so that white people with these traits are more likely to be im- pacted by racist policy changes.25 Courts. the media. and policy makers. can deny that these programs are racist and sexist and declare them neutral and fair. or trans identity. and people of color with these traits will be especially vulnerable. These methods of power and control are impossible to conceive of under the individual/in- tentional model of discrimination because such scenarios do not involve an individual person being excluded because of race or gender. However. may be much more significant than the impact of individual discrimination. all the while producing and relying on the racialized-gendered images that promote these programs. such as disability.

New Deal programs were designed in ways that mostly benefited white workers. Whiteness was established as the status that bestowed the power to own slaves and profit from their labor and be eligible to own property forcibly taken from indigenous people. ongoing programs and policies have ensured continued poverty.26 Even after the official end of slavery in 1865 and following the initial period of European settlement. Major national programs have maintained and exacerbated the racial wealth divide. helping maintain racial barriers to high paying jobs and exacerbating the racial wealth divide. Another example is the 1944 Servicemen’s Readjustment Act. Jim Crow laws. various treaties denying land rights. Black veterans had a much harder time utilizing the G. and economic exploitation of people of color. the Social Security Act provided a safety net for mil- lions of workers but excluded domestic and agricultural workers who were largely people of color. which assisted many white American war veterans to obtain college educations and home and business loans after World War II but was of little use to veterans of color. and banks. but it also allowed those unions to exclude and discriminate on the basis of race. For example.I. universities. with its affiliation to the all white American Legion and Veterans of Foreign Wars. Rethinking Transphobia and Power 115 of color. Bill. For example. although people of color were disproportionately impacted by the Great Depression be- cause of their disproportionate poverty. redlining. and many other population-level government interven- tions produced and maintained the poverty of people of color . land theft. The US Department of Veterans Affairs.I. and because many were unprepared to attend college because they had received such inadequate public education in the segregated school system. taxation laws. Asian exclusion laws. exercised its power to deny or grant the claims of Black members of the armed forces. Bill because of racism at colleges. allotment schemes. The 1935 Wagner Act granted white workers the right to collective bargaining through unions. It also excluded domestic and agricultural workers. more commonly known as the G.

The population-level programs that were mobilized from their inception by explicit race and gender exclu- sions continue to do the work of distributing security and vulner- ability along race and gender lines. it is asserted. It is only when we look at purportedly race-neutral population-level modes of control and distribution that we can understand and account for the racial wealth divide rather than permitting it to be justified through racism. just under the auspices of race . To limit our inquiry about why the racial wealth divide exists in the United States today to a search for individual racist employers or bankers suggests that besides these “few bad apples. and attacks on workers’ rights. and public education have continued to keep people of color disproportionately in poverty. The myth of legal equality in the United States is supported by the narrative that US laws used to exclude people on the ba- sis of race and gender but now they do not. all is now fair and equal. mass incarceration. However. race. just as immigration enforcement. land grants. our nation itself was built by the establishment of population-level systems of property and labor regulation that created and utilized racial and gender categories from the beginning. Such framing is often accompanied by an assertion that people of color are to blame for their dispro- portionate poverty. Supposedly.” the econ- omy is racially fair or neutral. education grants and loans. must mean that racism does not mediate economic participation. public benefits. This logic relies on the individual/inten- tional model of racism and functions to obscure the true condi- tions and operations of power that produce a correlation between wealth.116 NORMAL LIFE while home and business loan programs.27 The ongoing trend away from taxing wealth and toward taxing income from work has continued to build and maintain this wealth into the contemporary period. which. public transportation. It is often accompanied by the observation that some people of color do experience financial upward mobil- ity. and government benefits programs supported and continue to support white people in accumulating and sus- taining wealth. and lifespan.

28 Turning to the example of the history of welfare in the United States also reveals how even as population-level programs become officially race and gender neutral over time. the program traditionally called “welfare” in the United States. but policies and programs used to manage and distribute resources across the population are still mobilized by race and gender. Although the laws governing social welfare are no longer ex- plicitly based on race. The creation of the first income support programs in the United States benefited white widows of soldiers. they continue to tar- get harm and violence through vectors of gender and race. The race and gender rhetoric changes as struggles reshape the language and frameworks.29 As additional programs were added. the United States developed a tiered public benefits system where surviving spouses of soldiers and full-time workers receive higher benefits than parents apply- ing for public assistance not linked to such statuses. The creation of a tiered social welfare system allows certain programs to be racially coded in ways that make them more stigmatized and more vulnerable to attack. The tiered structure of the programs causes white people to disproportionately receive higher benefits because they have disproportionately higher rates of employment and pay due to structural racism. and politicians who have . has consistently been the target of racist and gendered attacks by media. and continue to distribute security and vulnerability across the population through those vectors. These programs were created through a campaign that focused on promoting “the well-being of the race” by ensuring that white mothers had the resources to properly raise the nation’s future white leaders in moral homes. the fact that the United States has a tiered social welfare system (as compared with many other countries that provide general benefits) creates significant racial and gender disparity in how much support the benefits actually provide. Rethinking Transphobia and Power 117 and gender neutral criteria. Aid to Families with Dependent Children (AFDC). academia. and disability and survivor benefit payment levels correspond to employment status and pay prior to disability or death.

The numerous programs that subsi- dize middle class and upper class disproportionately white fami- lies. such as Social Security benefits. or corporate tax breaks. healthy population. and that utilize more government funds than AFDC benefits. were never subjected to similar attacks. gender.118 NORMAL LIFE fabricated notions of “cultures of dependency” that pathologize benefits recipients. The programs most likely to support people of color were attacked and defunded. The Clinton-era attack on and dismantling of AFDC was supported by media “exposés” of “cheats” (usually depicted as unmarried Black mothers). the political implications of creating tiered benefits systems that sort recipient populations along lines of race. created an ideal context for attacks on the program.30 Although “welfare reform” harms many white families. Both framings (and all that . The national population is understood to face a risk from marginalized “others” that are portrayed as drains on or threats to the well-being of the nation. literally asserting that the program was needed to ensure that white widows could “promote the race” by raising their children.31 The fact that the public assistance systems of the United States were and are tiered from their inception—making AFDC disproportionately relied on by female-headed families of color—combined with years of social science research that portrayed Black families as pathologically matriarchal and that blamed poor people for poverty.32 This story is typical of the operation of population-level interventions that mobilize ideas of a standard. farm subsidies. When compared with other government sub- sidy programs. and income are clear. Although the early rhetoric used to establish aid to widows in the United States was more explicitly racist. the 1990s attack on AFDC also mobilized ideas about a white public that needed protecting from harmful or socially draining others whose existence was cast as a threat to race and gender norms. it has had a particularly calamitous impact on female-headed families of color that mirror the underlying racialized-gendered structure of the United States public benefits systems and the specific rhetoric mobilized by the campaign.

Racialized-gendered conceptions of the nation that depend on the construction of a national population in need of protection from poor people. Popular support for these changes was . Understanding population-management power illuminates the complexity of how race and gender operate as vectors of the distribution of life chances that cannot simply be solved by passing laws declaring that various groups are now “equal. education. even if explicit exclusions are eliminated. and economy held by millions of Americans. and myriad other conditions that produced these changes. Similar histories can be traced in other security-focused population-level programs in the United States. such as immigration. people of color. rather than individuals. immigrants. It was not just President Clinton or the people in the 1996 Congress who dismantled welfare: it was a combination of enduring racist and sexist stereotypes. and sale. criminal punishment.” The rapid growth of the criminal punishment system in the United States is another obvious site of the operation of population-level interventions mobilized by racialized-gendered narratives. possession. The language of racial and gendered othering has changed over time as formal legal equality has become the mandate of the law. but these programs are still deployed to the same ends. as their targets. internalized understandings of race. The forces that produce and reproduce these events are complex and multiple. Rethinking Transphobia and Power 119 came between and since) are examples of the racialized-gendered articulation of nationhood that is employed to establish broad- based programs that have populations. gender. and health care. and others cast as internal and external “enemies” are formed at the inception of security-focused population-level programs and continue to undergird and structure such programs. the mobilization of racial and gender norms in academic research and media. and that condition the distributions of life chances. The quadrupling of the US prison system in just a few decades was accomplished in large part by the passage of laws that increased sentences for certain charges related to drug use.

33 While the criminal punishment system declares itself to be about individual accountability for wrongful acts. for being too large or too . the meeting and not meeting of these norms occurs at the individual level. The policies and practices that resulted were responsible for increased policing in poor neighborhoods while providing law enforcement with more tools for surveilling. but instead targets people of color (at the population level) for imprisonment. we each learn the rules about how to be. in certain states. and the declaration of the War on Drugs were employed in the portrayal of a threatening proliferation of violence in Black communities.120 NORMAL LIFE built by panic-inducing discourses from politicians and the media about gang warfare and crack cocaine. The distinction between the disciplinary mode of power and population-level control is important here. though the legal mechanisms formally transitioned from chattel slavery to criminal punishment in the late 1880s. Exposé-style media stories. for failing to meet white cultural norms. among other things. and caging poor people and people of color. We might be shamed or excluded for dressing unprofessionally. student loans. As we saw earlier by looking at Angela Davis’s work. and we struggle and strive to meet those standards (even by inventing our own alternative subcultural norms) and to encour- age and coerce others (our children. arresting. our elected officials) to follow them. voting rights. At the level of norms and discipline. these frameworks have mobilized punishment and confinement consistently since the founding of the United States. our co-workers. an explosion of police/prosecution television shows and movies. In the disciplinary mode. We learn what is perceived as “right” or “proper” and “normal” in various ways. the implementation of population-level interventions mobilized through racialized- gendered frameworks of “threat” and “drain” resulted in a system that does not target users and sellers of illegal substances. These policies and practices also increased barriers to survival and political participation for people convicted of drug possession or sale by eliminating their eligibility for public housing. and.

private drug treatment or therapy. nor can it prevent vulnerability. The opposite is also true: people living in communities with a high quality of services. while teens in wealthy communities are more likely to have behavior problems solved through parental or school discipline. Parents who neglect their children will not experience the same consequences. health care. too compassionate or too violent. Living in communities impacted by policy decisions that have made schools. and other infrastructure insufficient. too loud or too quiet. clean air and water. People in the wealthy community are more likely to have private spaces away from police surveillance to buy and use drugs. however. and where high levels of police presence increase the likelihood of being harassed or even arrested for behavior that is just as common elsewhere but not equally surveilled. and more likely to get drugs through safer. Rethinking Transphobia and Power 121 small. and who are largely exempt from police ha- rassment and criminal enforcement may retain enormous health and security whether or not they violate social norms. The child welfare system disproportionately targets families of color and poor families for intervention. or too feminine or too masculine. are all examples of conditions that impact the health and security of populations regardless of the acts of individuals that either com- ply or fail to comply with various norms. Teenagers and adults who use drugs in these two communities will not experi- ence the same consequences. Teens in the poorer community are more likely to have the police called in by their school (if they are not already there). less criminalized channels like pre- scriptions from doctors. housing. The ability to pay for private treatment will . that have been zoned for toxic industries. power works differently and individual behavior is not the target of intervention.34 People with psychiatric disabilities will have very different experiences. Population-level interventions create conditions of control and distribution that impact people regard- less of their individual acts. At the population level. We can see the operation of population-level power if we consider the examples of these two communities.

Being able to understand the overlapping but distinct operation of these two vectors of power is essential for forming an accurate analysis of the arrangements and impact of transphobia. policy.122 NORMAL LIFE make a significant impact. sexism. or worker impact disciplinary codes that we en- force on ourselves and each other are mobilized in the promotion of certain population-level interventions. woman. student. neighbor. other forms of control and maldistribution) is extremely narrow: a violation can only be found when the formula of intentional. Although narratives about what constitutes a proper citizen. As Alan Freeman’s description of the perpetrator perspective explains. racism. they operate differently in the individual context versus the population-level context. the law’s understanding of the function of racism (and. It does not and cannot create the kind of massive redistribution of wealth and life chances that would actually address the impacts of white supremacy. transphobia. and homophobia—and for concep- tualizing methods of resistance. . using the perpetrator perspective to define and address racism through law only creates formal legal equality on paper. individual discrimination is met. As the history of anti-discrimination and hate crime laws in the United States illustrates. ableism. but without explicitly and/or individually addressing subjects through those lenses. man. and homophobia. Using a narrow formal legal equality and discrimination model tends to focus on changing what the law explicitly says about a given group but does not address the ways that legal. and the likelihood of experiencing po- lice harassment and arrest for behaving in ways that are outside of norms is far greater for people of color and poor people. xenophobia. and institutional practices create conditions that severely disadvantage certain populations through the mobilization of racism.35 Such a narrow view depends on naturalizing and erasing the historical and contemporary conditions that lead different groups to have such starkly dissimilar life chances. we can extrapolate. ableism. sexism. xenophobia.

Trans activists and scholars have explored how the medicalization of trans identities forces trans people to conform to rigid disciplinary gender norms in order to access medical technologies if we want or need them.. First. Analyzing how trans and gender nonconforming vulnerability is produced through population-level interventions is essential and has been explored less. hospitals.g. prison expansion. welfare systems. The kinds of harm that occur through both of these modes of power are especially difficult to reach through law re- form efforts. we can analyze the use of gender as an administrative category by institutions of all kinds (e. even when certain law reforms are won. and understanding these operations of power helps us to understand why. the expansion of immigra- tion enforcement. Population Management. prisons. how gender norms in social services. how gender norms mo- tivate employers to pass over trans applicants for hire or to fire trans employees. tax systems. Rethinking Transphobia and Power 123 Discipline. and how gender norms are used even with- in various trans communities to establish norms of transness that we enforce against one another and against ourselves.g. conditions do not improve. disciplinary gender norms have received far more at- tention in trans scholarship and activism than population-level interventions. and Trans Vulnerability Understanding discipline and population management is essen- tial to discerning the causes of the kind of structured insecurity and shortened life spans faced by trans people described in the Preface. Second. shelters and group homes. the War on Terror and the War on Drugs. families. and religious organizations often result in the abandonment or abuse of trans people. however. DMVs. employers. the elimination of welfare entitlements) from . transportation systems). Both are very important to examine.. we can formulate understandings of the racialized-gendered nature of key population-level interventions (e. schools. Thinking about population-management power can help us do a few key things.

Such analysis and action requires a deliberate break from the legal rights focus that has come to be portrayed as the natural and preeminent target of marginalized groups. fighting against police violence. and by reinforcing the targeting of certain perceived “drains” or “internal enemies. and has been modeled by lesbian and gay rights reform efforts in recent decades. the legal strategy would have been vastly different. Finally.” carving the group into “the deserving” and “the undeserving” and then addressing only the issues of the favored sector. opposing sentencing enhancements for drugs and other criminalized behaviors that are responsible for the bulk of imprisonment for all people (including lesbian and gay people). actively resisting prison . joining and creating lawsuits focused on prison conditions. and murder of queer people who are imprisoned. It might have focused on supporting people currently imprisoned. The two major interventions of lesbian and gay law reformers in crim- inal law have been advocating the decriminalization of sodomy and the passage of sexual orientation–inclusive hate crime laws. rape. If the aims were to reduce the number of lesbian and gay people in prisons and jails or to reduce the medical neglect. The choice of these two targets demonstrates the “what the law says about us” focus of the work. legal inclusion and recognition demands often rein- force the logics of harmful systems by justifying them.124 NORMAL LIFE the perspective of trans and gender nonconforming experiences. The relationship of lesbian and gay law reform projects to the field of criminal law provides an obvious and useful example. we can formulate strategies for resistance and transforma- tion that will actually reach and alter the harmful practices that shorten trans lives through the mobilization of race and gender norms at the population level. contribut- ing to their illusion of fairness and equality. In fact. With the recognition that changing what the law explicitly says about a group does not necessarily remedy the structured insecurity faced by that group comes a larger question about transformations that cannot occur through demands for legal recognition and inclu- sion. nutritional deprivation.

but leaves out a dis- tributionary understanding of criminal punishment that would create ideas for intervention that actually improve the life chances of gay and lesbian people who face criminalization. Does the end of sodomy criminalization and the addition of sexual orientation to hate crime laws mean that the criminal punishment system is no longer homophobic? Of course not. explicit inclusions and exclusions. the goal of the interventions taken up by the most well-resourced lesbian and gay organizations was to merely alter the parts of criminal law that explicitly name lesbian and gay people as criminal solely for behavior associated with homosexu- ality and to lobby to be added to the list of populations explicitly (but not actually) protected by criminal law. and joining efforts toward prison abolition. more explicit homophobic inclusion or exclusion in certain as- pects of the criminal law may be a small and possibly insignificant . such strategies even enhance its resources and capacity to punish. Instead. the criminal punishment system may appear to be a protector and its perceived flaws limited to these narrow. Another danger of such a strategy is that it is produced by and enhances race and class divides among lesbians and gays that correlate to experiences in and views of the criminal punishment system. but also of strengthening the criminal punishment system by allowing it to appear fair and neutral. casting it as a source of protection from violence rather than a primary perpetrator of violence. these strategies risk not only failing to improve the life chances of the people they are supposed to help. For those lesbian and gay people who live in fear of police harassment and violence. For those living in white communities not targeted for policing and imprisonment. Rethinking Transphobia and Power 125 expansion and criminalization. As I argued in Chapter Two. or are regularly targeted by the juvenile and adult punishment systems. But producing such a narrow criminal law reform agenda suggests so. In the case of hate crime laws. have faced the loss of family members to imprisonment. This approach con- cerns itself exclusively with the explicit and intentional opera- tions of homophobia when written into law.

racial justice. such reforms run in opposition to their work. Even more importantly. the notion that a lesbian and gay political stance should focus on military inclusion rather than demilitarization is a grave. Those populations may crave interventions that do more to reduce or end imprisonment and/or protect prisoners.36 For groups organizing to oppose policing and imprisonment. the demand for hate crime legislation has the danger of building the criminal punishment system by enhancing penalties and resources. Similar controversies have emerged in other instances where (usually white-led) lesbian and gay (and sometimes trans) reform organizations have sought inclusion or recognition from systems that feminist. people who are part of campaigns to dismantle systems because they see those systems articulate control at the population level are likely to understand how reforms that are solely concerned with how those systems describe themselves are misguided and dangerous. The early gay politics of the Stonewall era was influ- enced by and included demands for racial justice. people with disabilities. the idea that lesbian and gay people should seek marriage recognition rather than aim to abolish marriage and achieve more just methods of distribution is similarly problem- atic. As previously discussed.126 NORMAL LIFE demand. genocide. For those who have long articulated opposition to state incentivization and reward for heteropatriarchial sexuality and family structures and punish- ment for others. and other racist and gender-based violence. colonization. divisive mistake. includ- ing people of color. . The history of these controversies and the political choices made during their development relates to the rise of neoliberal- ism in the wake of the social movements of the 1960s and 1970s discussed in Chapter One. feminism. The quests for inclusion in US military service and in the institution of marriage have generated these same rifts. land and resource theft. and disability justice activists and scholars have identified as key nodes of maldistribution of life chances. For those who know that the US military is a primary force of systematic rape. and poor people.

sodomy decriminalization. and the passage of hate crime laws became its prime targets. imperialism. and sexism. The result.37 As trans politics develops. both in law and popular culture. and systemic patriarchy (including marriage) were co-articulated and interwoven by many groups and individuals during that period. population-level disparities. critical disability scholars and activists. a newly conservatized lesbian and gay politics focused on inclusion and recognition came to dominate public discourse about resistance to homophobia. ableism. military inclusion. social norms. As the backlash to those movements rose and “law and order” politics emerged along with nonprofitization. Inclusion and recognition arguments that coalesce around hate crime and anti-discrimination laws are the seemingly obvi- ous targets for trans law reform. which focused on broad. has been legal reforms that mostly maintain—and often bolster—systems of maldistribution and control in the name of equality. Critiques of policing. Formal legal equality in the form of marriage in- clusion. distribution. The analytical frameworks of the social movements of the 1960s and 1970s. thus far. and overall demilitarization that were being raised by many vibrant movements domestically and globally at that time. The understanding of control. a similar set of choices arise before us. was replaced by individual discrimination-based un- derstandings of racism. individual- ity. Rethinking Transphobia and Power 127 anti-colonialism. the limitations of these strategies have been well articulated by women of color feminists. homophobia. . as well as from many engaged in queer and trans resistance. and power that these critical perspectives provide exposes the limitations of currently celebrated yet ineffective law reform strategies and generates a theory of change that de-centers law reform in the quest for trans- formative change. and even diversity. However. anti-discrimination. and critical race theorists. both because they have been modeled by lesbian and gay rights strategies and because there is a broadly believed myth in the United States that such strate- gies ended racial subordination.

4. Our goal cannot be to get the law to say “good” instead of “bad” things about people who are marginalized. 136. . 1996). and how to strategize the change we need. Thinking about population- management power opens up a space for us to reconsider how we think about those harmful arrangements. Garry Peller. 2003). “Legitimizing Racial Discrimination Through Anti-Discrimination Law: A Critical Review of Supreme Court Doctrine. is not an ordering of . Population (New York: Picador. puts it nicely. created to establish and maintain slavery and colonialism can provide. Society Must Be Defended: Lectures at the College de France. what targets and methods we take for our interventions. exploited. Law reform and an investment in winning “rights” has proven to legitimize and shore up the very arrangements that produce the harm we seek to eradicate. 3. I am relying on Foucault’s theorization of discipline and biopol- itics. Michel Foucault. Neil Gotanda. criminalized. . that limit our imaginations to what a US legal system. If we curtail and narrow our vision in ways that make it impossible to imagine a more just world. Alan David Freeman. 29–45. [1978] 1990). See History of Sexuality. we will perpetuate rather than deeply transform the arrangements that concern us. Trans. 136. and Michel Foucault. Eva Cherniavsy. writing.128 NORMAL LIFE We must stop believing that what the law says about itself is true and that what the law says about us is what matters. Security. David Macey (New York: Picador. NOTES 1. impoverished. 1: An Introduction. History of Sexuality Vol. ed. Michel Foucault. History of Sexuality. (New York: The New Press. Kimberlé Crenshaw. 2. discussing Michael Hardt’s description of Foucault’s concept of discipline as a way of thinking about civil society. “Foucauldian discipline .” in Critical Race Studies: The Key Writings that Formed the Movement. 2009). Michel Foucault. and Kendall Thomas. and exiled. 5. 1975–76. Robert Hurley (New York: Vintage Books. Territory. Trans.

800 F. 2002). 10. Race and the Education of Desire: Foucault’s History of Sexuality and the Colonial Order of Things (Durham.Supp. ed. not a restrictive apparatus. . 876 F. 527 F. 7. Rogers v. 116. Friday.2d 1145 (1986). 6. 10. Gideon v. Foucault.Cal. 2d 896 (9th Cir. [employed] methods [that] were no less terrorizing. “Can the Subaltern Speak?” in Marxism and the Interpretation of Culture. Riverside Community College District. 1983). 13. 35–54.” GLQ: A Journal of Lesbian and Gay Studies 16 (2010): 105–131. Society Must Be Defended. Carnal Knowledge and Imperial Power: Race and the Intimate in Colonial Rule (Berkeley. Cary Nelson and Lawrence Grossberg (Chicago: University of Illinois Press. Ulane v. 1995). “Neocitizenship and Critique. No. 11. (March 31. Foucault. Ann Laura Stoler. 1989).” Social Text 27 (2009): 1–23. “Settler Homonationalism. 249. The Protestant Ethnic and the Spirit of Capitalism (New York: Columbia University Press. in short. . 229 (1981). Mari . Conquest: Sexual Violence and American Indian Genocide (Cambridge.2d 591 (1989). 9. C. Scott Lauria Morgensen. and Rey Chow. Fragante v. 8. in his description of the imposition of binary gender norms on colo- nized indigenous young people subjected to boarding school programs. Kahakua v. 888 F. History of Sexuality. 14. History of Sexuality. 43.” Eva Cherniavsy.D. American Airlines. 1988). 2005). 12. but a productive one that conjures the very identities to be managed. Foucault. Foucault. 82-01310-BR. History of Sexuality.” Scott Lauria Morgensen. 111–116. Society Must Be Defended. City and County of Honolulu. Salem v. “Settler Homonationalism: Theorizing Settler Colonialism within Queer Modernities. La Salle High School. quote p. 742 F. 249. Rethinking Transphobia and Power 129 natural or given social elements. Foucault. Eastern Airlines. Scott Lauria Morgensen.2d 1081 (1984). CA: University of California Press. See Andrea Smith. Ann Laura Stoler. See Gayatri Chakravorty Spivak. argues that the “shifting colonial authority from a brutal right of pub- lic execution to the normalization of death in regulatory regimes based on discipline . NC: Duke University Press. 2002).” 105–131. MA: South End Press.

Paisley Currah and Lisa Jean Moore’s article. Colin Gordon. 2006). 20. Harrah’s Operating Co.” Mariana Valverde.] In a normalizing society. (London: SAGE Publications. 19. Governmentality: Power and Rule in Modern Society.3d 1104 (9th Cir. ‘‘We Won’t Know Who You Are: Contesting Sex Designations in New York City Birth Certificates. “Gendered racism is a concept that can also help us to understand the intensity of white hostility toward the supposedly ubiquitous and stereotypical ‘welfare queen. Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven. no. Society Must Be Defended. Scott.” Yale Law Journal 100 (1991): 1329.’ I obviously do not mean simply murder as such but also every form of indirect murder: the fact of expos- ing someone to death. expulsion. 1998). ed. Foucault. 258.” Economy and Society 36. .” in The Foucault Effect: Studies in Governmentality. James C. race or racism is the precondition that makes killing acceptable.. [. . 1991). 254. 18. [. Mitchell Dean. CT: Yale University Press. Jespersen v. 2010).’ She is typically portrayed by the mass media and in everyday discourse as an African-American woman who is living . .130 NORMAL LIFE Matsuda. 17. increasing the risk of death for some people. Graham Burchell. Hypatia 24 (2009): 113–135. Antidiscrimination Law and Jurisprudence for the Last Reconstruction. or. Michel Foucault. Foucault describes racism as the technology that justifies killing those marked as inferior in the context of a power mobilized to promote the life of the population: “What in fact is racism? It is primarily a way of introducing a break into the domain of life that is under power’s con- trol: the break between what must live and what must die. 2nd ed.” explores the significance of birth registra- tion programs to the kind of state making Scott describes and provides a useful analysis of recent efforts by trans activists related to birth registra- tion documents. quite simply. rejection and so on.. Inc. 34. 16.] When I say ‘killing. 1 (February 2007): 176. 444 F. and Peter Miller (Chicago: University of Chicago Press. 15. “Voices of America: Accent. . “Genealogies of European States: Foucauldian Reflections. “Governmentality. political death. 95.

30. 21. Rethinking Transphobia and Power 131 fraudulently. is best viewed not as a thing but as a process. people with disabilities. one can analyze ways in which negative class-. It is important to ask why racial state actors choose to single out women of color in this discourse (or use race-coded terms for such women). for example. race-. Of course. and ‘royally’ off generous welfare benefits provided by taxes paid by overworked European Americans. like racism more generally. 22. Gendered racism. & ‘Worthiness’ in Poverty Discourse and Policy. “Stratification of the Welfare Poor: Intersections of Gender. Welfare Racism: Playing the Race Card Against America’s Poor (New York: Routledge: 2001). February 15. and that required school systems to fire teachers with native- Spanish speaking accents or who spoke English “incorrectly” were a rare instance where many people in the United States seemed to understand that these purportedly race-neutral laws are actually targeted at Latin@ populations.” a federal program that. queer and trans people. 51. The laws passed in 2010 by the Arizona state legislature that required police to question people they suspect to be undocumented immigrants. public assistance-reliant mothers are effectively mobilized by racial state actors and others who contribute to welfare-related discourse. enforced in ways that target peo- ple of color. and gender-based images of impoverished. to oppose “Secure Communities. and poor people. It is also revealing to explore the functions that effective mobilization of such images serves for whites and for white racial hegemony more generally. many of the people who publicly disapproved of one or more of Arizona’s new laws. . lazily. “Welfare Queen Becomes Issue in Reagan Campaign. similar to Arizona’s controversial law. 1976. By focusing on gendered racism as a process. Many of those who have spoken out against Arizona’s new laws have entirely failed.” Kenneth J. Thinking about racism as a process leads us to ask how and why racism occurs in policy arenas such as welfare. . . Neubeck and Noel A. including President Barack Obama.” New York Times. that banned education programs aimed at Latinos and Latinas. from its inception. given that there are plenty of white women who rely on welfare.” The Modern American 6 (2010): 4. Bridgette Baldwin. Race. uses local . Cazenave. do not generally oppose the broader immigration system which is and always has been.

immigrationpolicy. INCITE! Women of .132 NORMAL LIFE law enforcement mechanisms increasingly to surveil immigration sta- tus with the goal of increasing deportation. The average assessed property value per pupil in the rich district was $49. the Supreme Court considered a Texas school district’s method of school financing that was based on property taxes and resulted in severe disparity between the resources of the schools in the white wealthy area and the poor area populated by Black and Latino stu- just-facts/secure-communities-fact-sheet. The poor schools. Secure Communities: A Fact Sheet (Washington. Foucault. Ngai. “Heteropatriarchy and the Three Pillars of White Supremacy: Rethinking Women of Color Organizing.000 while in the poor district it was $5. 23. 6 percent Black. ed. and 4 percent white.” Harvard Law Review 106 (1993): 1709. http://www. 18 percent Latino and 1 percent Black. there was often a shortage of white labor in the area and whites often were not interested in the kinds of jobs Filipinos were hired to do. Society Must Be Defended. In that case.” In fact. 24. persists in immigration debates throughout the US history of immigration enforcement. had $356 per pupil per year. 2010). Misinformation of this kind.” in Color of Violence: The INCITE! Anthology. Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton. 26. The rich schools. Cheryl I. However.C. which were 81 percent white. A well-known legal case that demonstrates how the law’s narrow understanding of oppression prevents it from being able to remedy sys- temic racism is San Antonio Independent School District v. The Supreme Court refused to make a finding that this method of financing schools deserved the Court’s strict scrutiny because of its class.: Immigration Policy Center. Harris. Immigration Policy Center. D. Ngai describes how anti-Filipino violence in 1920s California was often fueled by rhetoric about job competition. Andrea Smith. November 4.or race- based impact. which were 90 percent Latino. “Whiteness as Property.960. 254–256. fueled by racism and xe- nophobia. 25. had $594 per pupil per year. “that conclusion was not supported by the actual patterns of employment and racial conflict. Rodriguez. 2004). 106. 411 US 1 (1973). Mae M. Mae M. NJ: Princeton University Press.

MI: University of Michigan Press.” in Women. racial policy was at once a geopolitics that grafted a nonredistributive anti-racism to a U. and cultural citizenship to all. 2006). “The Lady and the Tramp: Gender. 29. Loïc Waquant draws attention to the absurdity of Clinton-era .S. Her formulation reveals how these changes have constrained political dis- course in ways that assist resistance politics in being co-opted into narrow rights struggles that cannot deliver transformative change. ed. The Twilight of Equality? Neoliberalism. It restricts the settlement of racialized conflict to liberal political terrains that conceal the material inequali- ties capitalism generates. Cold War U. and Richard Fording (Ann Arbor. 28. “Queens Teens and Model Mothers: Race. The Twilight of Equality? 31. Cultural Politics. 188–189. WI: University of Wisconsin Press.S. nationalism itself bearing the agency of transnational capitalism. Duggan. 2003). Closing the Racial Wealth Divide Training Manual (Boston: United for a Fair Economy. Jodi Melamed’s remarks at the 2011 Critical Ethnic Studies Conference at UC Riverside addressed this shift in the rhetoric mobilized by the US to maintain racialized distributions of wealth and life chances. Cold War racial liberalism compelled a field of racial meanings in which dominant anti-racist discourse have to take U. 27. Linda Gordon (Madison. 2006). 1990).” in Race and the Politics of Welfare Reform. the State and Welfare. Rethinking Transphobia and Power 133 Color Against Violence (Cambridge. Sanford F. Mink. This graft- ing was decisive. Holloway Sparks. Lisa Duggan. ascendancy for granted and to incorporate the interests of the state into the goals of anti- racism. See United for a Fair Economy. She argued Within a framework that redefined racism as “prejudice” and anti-racism as the extension of equal opportunity. ed. 30. Schram. “The Lady and the Tramp”. Race and the Origins of the American Welfare State. pos- sessive individualism. Joe Soss.S. Gwendolyn Mink. and the Attack on Democracy (Boston: Beacon Press: 2004). Gender and the Discourse of Welfare Reform. MA: South End Press. 92–122.

32. Punishing the Poor: The Neoliberal Government of Social Insecurity (Durham: Duke University Press. [N]otwithstanding the thundering proclamations of politi- cians from all sides about the necessity to ‘end the era of Big government’—the cheery chorus of Clinton’s State of the Union address in 1996—the US government continues to provide many kinds of guarantees and support to cor- porations as well as to the middle and upper classes. Over seven in ten fami- lies in the top 1 percent received mortgage subsidies (aver- aging $8. 42. and child nutrition assistance ($7. The report argued that Black family life was a “tangle of pathology . usu- ally called the Moynihan report. food stamps ($25 million). . The Negro .” It asserted that economic and political equality for Black people hinged on increasing the prevalence of heterosexual nuclear families in the Black community.000 mark (for a paltry $486 each). It was a key document in establishing the racist.134 NORMAL LIFE attacks on welfare by exposing the much larger subsidies for wealthy families that were kept in place. Perhaps the most infamous document in this research trend is the 1965 document. Daniel Patrick Moynihan.5 billion). capable of perpetuating itself without as- sistance from the white world” and that “at the heart of the deterioration of the fabric of Negro society is the deterioration of the Negro family. .457) as against fewer than 3 percent of the families below the $30. This fiscal subsidy of $64 billion to wealthy home owners dwarfed the national outlay for welfare ($17 billion). and 16 percent of that sum went to the top 1 percent of taxpayers with incomes exceeding $200.000 that year. anti- poor idea that welfare receipt is a cause and effect of non-adherence to pa- triarchal norms of family structure. for example. sexist. 2009). start- ing. Loïc Waquant.000. with home ownership assistance: almost half of the $64 billion in fiscal deductions for mortgage interest payments and real estate taxes granted in 1994 by Washington (amounting to nearly three times the budget for public housing) went to the 5 percent of American households earning more than $100. The Negro Family: The Case for National Action.

avp. “Crime. “Statement of the National Coalition of Anti-Violence Programs” (2009). “SRLP Announces Non-Support of . Queers for Economic Justice. although they constitute less than one fifth of the na- tion’s children. had critiqued the hate crime law strategy from the start. The 2009 controversies around the addition of the death pen- alty to the federal hate crime statute brought these tensions to the surface.pdf. ed.” in Color of Violence: The INCITE! Anthology. Freeman. Black children make up nearly half the foster care population. FIERCE. “Legitimizing Racial Discrimination Through Anti- Discrimination Law. such as Communities United Against Violence in San Francisco. Black children remain in foster care longer. African Americans are the most likely of any group to be disrupted in this way by government authorities. 34. vi. 1965).24. 35. INCITE! Women of Color Against Violence (Cambridge. 36. 2002). Punishment. DC: Office of Policy Planning and Research. Sylvia Rivera Law Project. and Economic Violence. 33. the Audre Lorde Project. Rebecca Waggoner-Kloek and Sharon Stapel. MA: South End Press. the American Friends Service Committee.09. 2006).” 29–45. while other groups. receive fewer services. given its relentless drive to expand itself by adding more and harsher pun- ishments wherever possible. Peter Cicchino Youth Project. Shattered Bonds: The Color of Child Welfare (New York: Civitas Books. 95 percent of children in foster care are Black. “More than a half million children taken from their parents are currently in foster care. www. US Department of Labor. In Chicago. Dorothy Roberts has extensively documented and analyzed the racial disparities in the child welfare system. and the Sylvia Rivera Law Project in New York City. Patricia Allard. Rethinking Transphobia and Power 135 Family: The Case for National Action (Washington. Once removed from their homes. and the Audre Lorde Project. and are less likely to be either returned home or adopted than other children. The controversy brought attention to the real dangers of trying to ally with the criminal punishment system. The National Coalition of Anti-Violence Projects released a statement critiquing the addition of the death penalty clause specifically. 157– are moved more often.” Dorothy Roberts.

37. Jr. 2008).. . Hate Crimes Prevention Act” (2009). http://srlp. org/genda.136 NORMAL LIFE the Gender Employment Non-Discrimination Act” (2009). “SRLP Opposes the Matthew Shepard and James Byrd. and Sylvia Rivera Law Project. See Avery Gordon and Christopher Newfield. http:// srlp. eds. Mapping Multiculturalism (Minneapolis: University of Minnesota